Industrial Finance Corp. v. Danbury Shopping Center, Inc.

• Decision Date: 01 September 1967
• Docket Number: No. 128825,128825
• Citation: 27 Conn.Supp. 200,233 A.2d 692
• Court: Connecticut Superior Court
• Parties: INDUSTRIAL FINANCE CCRPORATION v. DANBURY SHOPPING CENTER, INC., et al.

Page 692

233 A.2d 692

27 Conn.Supp. 200

INDUSTRIAL FINANCE CCRPORATION v. DANBURY SHOPPING CENTER, INC., et al.

No. 128825.

Superior Court of Connecticut, Fairfield County, at Bridgeport.

Sept. 1, 1967.

Slavitt & Connery, Norwalk, and Pinney, Hull, Payne & VanLenten, Danbury, for plaintiff.

Cohen & Wolf, Bridgeport, for defendant.

Rosenberg & Rome, Hartford, for movant Ducci Electric Co., Inc.

GRILLO, Judge.

The movant, Ducci Electric Company, Inc., proceeding under § 49-15 of the General Statutes, seeks to reopen a judgment of strict foreclosure previously rendered. ¹ The movant in addition asks that it be made a party defendant, contending that its mechanic's lien enjoys a priority over the plaintiff mortgagee's interest. There is no substantial disagreement as to the facts pertinent to these motions.

Succinctly stated, it is the plaintiff's contention that § 52-325 of the General Statutes as a matter of law prohibits the movant from asserting the alleged priority of its lien, since no application to be made a party was made by the movant prior to the entry of judgment. ² It is conceded that the movant failed to apply to be made a party prior to the date of judgment. Parenthetically, it might be noted that the original judgment was entered on March 10, 1967, and judgment was reopened on July 13, 1967, concerning which judgment more will be stated hereafter. The plaintiff insists that § 52-325 is, in effect, a statute of limitations prescribing a specific procedure and that a failure to comply strictly with the requirements of the statute, i.e., applying to be made party prior to the date when the judgment is rendered works a forfeiture of the movant's mechanic's lien rights.

It is true that as a general rule the time fixed by a statute within which a right created by a statute can be enforced is a condition imbedded in the right itself and not a mere limitation affecting remedy or procedure which may be subject to equitable considerations. Simmons v. Holcomb, 98 Conn. 770, 774, 120 A. 510. Thus time factors, conditions precedent essential to the establishment of statutory rights, are jurisdictional in character and cannot be avoided upon equitable grounds. Vegliante v. New Haven Clock Co., 143 Conn. 571, 580, 124 A.2d 526. The movant's rights as a mechanic's lienor do not, however, emanate from § 52-325 but from other statutes completely unrelated to that stature-s 49-33 (mechanic's lien) et seq. The plaintiff's argument would be persuasive if, for example, it were to establish the movant's failure to comply with the (sixty-day) provisions of § 49-34. The doctrine of lis pendens has its origin in equity, and to accord the statute the pernicious impact which the plaintiff suggests-an irrevocable forfeiture of the right of the mechanic's lienor to enforce the lien through a reopening of the judgment-lacks historical justification and would allow procedure to prevail over substance. King v. Bill, 28 Conn. 593. Thus, the time provisions of § 52-325 cannot, as a matter of law, bar the court from exercising its discretion via § 49-15.

Furthermore, legislatures in passing statutes are presumed to know of the existence of other statutes. State ex rel. Judson v. County Commissioner, 68 Conn. 16, 17, 23, 35 A. 801. Section 52-325, therefore, should be read in the light of § 49-15. The authority to reopen a judgment of strict foreclosure on the motion 'of any person having an interest therein, and for cause shown,' necessarily includes judgments obtained subsequent to causing a lis pendens to be filed. That mode of instituting an action is fundamentally procedural. Dante v. Dante, 93 Conn. 160, 164, 105 A. 353.

Nor does the court subscribe to the proposition that there is a limitation to the authority of the court to reopen a judgment under § 49-15, i.e., merely to change law days or to permit additional parties to enter and receive a law day. See Hoberman v. Lake of Isles, Inc., 138 Conn. 573, 576, 87 A.2d 137. "reopening a Case.' Is to permit the introduction of new evidence and, practically to permit a new trial.' Black, Law Dictionary (4th Ed.). (The judgment file in the instant case indicates, for example, that the court on July 13, 1967, following a reopening of the previously entered judgment, not only set forth new law days but determined that the allegations of the complaint were true and that a certain sum was due the plaintiff on the complaint.)

Having concluded there is no impediment to reopening the previous judgment, the court's attention is directed to the simple question: Does the movant have an interest in the judgment of foreclosure and does the evidence produced show cause justifying the reopening of the judgment? That the movant has an interest requires no discussion. As to the requirements of cause: The evidence indicates that in conversation and communications between attorneys for the movant, the plaintiff mortgagee, and the owners of the equity, all proceeded in good faith on the assumption that the movant's alleged prior rights would be secured even though it was not a party. It was not until July 28, 1967, when the title company (not, incidentally, a party herein) insuring the title against mechanics' liens notified the movant's attorney that it was contesting the movant's claim since it had no rights by virtue of § 52-325, that the movant found it necessary to make a motion to reopen the judgment and be allowed to intervene. Ducci Electric Company, Inc., would appear to be in a priority position with reference to its mechanic's lien prior to the foreclosing mortgagee, but we need not determine that question to a point of res judicata here, for the court's inquiry is only directed to whether cause for reopening exists, not to determine the substantive rights of the parties. Hoberman v. Lake of Isles, Inc., supra, 575, 87 A.2d 137.

We are mindful of the claim of the movant that the court should determine priorities in these proceedings, as was done in Solomon v. Pace, 115 Conn. 702, 160 A. 428. In that case, however, a determination of that issue was necessary, since it was a foreclosure action, the plaintiff had asserted in the complaint...