E. J. Hansen Elevator, Inc. v. Stoll

• Citation: 356 A.2d 893,167 Conn. 623
• Court: Supreme Court of Connecticut
• Decision Date: 18 February 1975
• Parties: E. J. HANSEN ELEVATOR, INC. v. Herbert STOLL et al. DORADO BAY INTERNATIONAL v. NORTH HAVEN BRIARWOOD CORPORATION et al.

Page 893

356 A.2d 893

167 Conn. 623

E. J. HANSEN ELEVATOR, INC. v. Herbert STOLL et al.

DORADO BAY INTERNATIONAL v. NORTH HAVEN BRIARWOOD CORPORATION et al.

Supreme Court of Connecticut.

Feb. 18, 1975.

Anthony M. Macleod, Greenwich, in the first case, in support of the motion.

Gary A. MacMillan, Stamford, in the second case, in support of the motion.

Frank J. Mongillo, Jr., New Haven, in the second case, in opposition.

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ. HOUSE, Chief Justice.

Although these two cases are unrelated, each of them is before us on a motion to dismiss an appeal; and they both involve a determination as to whether the order of a court rendered on an application for a prejudgment remedy pursuant to the provisions of Public Acts 1973, No. 73-431, is a final judgment from which an appeal may be taken. This common issue is one of first impression before this court and it is appropriate to consider the merits of both motions in one opinion.

Prior to the adoption of Public Act 73-431, writs of attachment signed by a commissioner of the Superior Court could be, and commonly were, issued by attorneys as commissioners of the Superior Court without notice, hearing or any judicial action. See Practice Book § 28 and Form No. 1, p. 249; General Statutes §§ 52-89, 52-90. The decisions of the United States Supreme Court in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556; Lynch v. Household Finance Corporation, 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424, rehearing denied, 406 U.S. 911, 92 S.Ct. 1611, 31 L.Ed.2d 822, and Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349, spelling out the requirements of due process of law in certain creditor proceedings, led to the adoption of Public Act 73-431. See 16 Conn.H.Proc., Pt. 12, 1973 Sess., pp. 5834-42. The full text of Public Act 73-431 entitled 'An Act Concerning Prejudgment Remedies' is available in part 1, volume II of the 1973 Public Acts. Its length precludes our reprinting it here but its provisions, so far as they are relevant to the merits of these motions, may be briefly summarized. A 'prejudgment remedy' is defined as 'any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of, his property prior to final judgment but shall not include a temporary restraining order.' It is provided that, except in an action upon a commercial transaction, wherein the defendant has executed a waiver, no prejudgment remedy shall be available in any action at law or in equity unless an application is first directed to the court in which the action is made returnable. The application shall have attached to it the proposed writ, summons and complaint, an affidavit 'setting forth a statement of facts sufficient to show that there is probable cause that judgment will be rendered in the matter in favor of the plaintiff,' and forms of order of notice and hearing. The defendant has the right to appear and be heard at a hearing that 'shall be limited to a determination of whether or not there is probable cause to sustain the validity of the plaintiff's claim.' If the court finds that the plaintiff has shown probable cause to sustain the validity of his claim, 'then the prejudgment remedy applied for shall be granted as requested or as modified by the court.'

In the first case E. J. Hansen Elevator, Inc. v. Stoll, hereafter referred to as the Hansen case, the plaintiff applied for a prejudgment remedy and was granted an order for the attachment of the real estate of the defendant. In the second case, Dorado Bay International v. North Haven Briarwood Corporation, hereafter referred to as the Dorado case, the plaintiff applied for prejudgment remedies by way of attachment, garnishment and the appointment of a receiver. This application was denied. In the Hansen case, the defendant appealed to this court from the order granting the remedy and in the Dorado case the plaintiff appealed from the order denying its application for the prejudgment remedies. In each case the appellee filed a motion to dismiss the appeal, asserting that the order of the court was not a final judgment from which an appeal could be taken to this court. In the Hansen case, the motion to dismiss included an additional ground on which dismissal is sought, and we will consider that further claim after first considering the question common to both motions, i.e., is the order of the trial court rendered on an application for a prejudgment remedy a final judgment from which an appeal lies to this court?

It is well established that appeals to this court can be taken only from final judgments. The requirement of finality was early settled in our practice. See Gleason v. Chester, 1 Day 27. The requirement is now codified in Practice Book § 600 and General Statutes § 52-263 and is predicated upon very practical reasons. 'It would lead to great confusion if a party was bound to take an appeal from every interlocutory judgment of a lower court'; Morse v. Rankin, 51 Conn. 326, 329; allowance of multiple appeals in a single action would not accord with the sound policy which favors the speedy disposition of actions in court. State v. Kemp, 124 Conn. 639, 647, 1 A.2d 761. Although the requirement of the finality of a judgment as a condition precedent for the taking of an appeal is well settled, the determination of whether a particular judgment is a final one has been a source of much litigation in this court. See ceses indexed in Phillips, Connecticut Digest and the cumulative supplement thereto under 'Appeal and Error § 5-Finality of Judgment,' and Maltbie, Conn.App.Proc. §§ 10 through 15, particularly § 14, 'Judgments which have been held final' and § 15, 'Judgments which have been held not final.'

It is apparent that there are certain judgments which are undoubtedly final and others that are clearly interlocutory and not appealable. The problem, of course, arises in the gray area between these obvious certainties and in the formulation of some standard or test to determine the status of finality. The decisions of this court over the years have demonstrated that there is no one test which is valid and decisive in all circumstances. In the recent decision in Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 320 A.2d 797, we noted (p. 292, 320 A.2d pp. 799-800): 'This court has developed a number of standards delineating the requirement of finality. One test is whether the order or action terminates a separate and distinct proceeding. Dewart v. Northeastern Gas Transmission Co., 139 Conn. 512, 514, 95 A.2d 381. Another test lies in the effect of an order 'as concluding the rights of some or all of the parties'; Banca Commierciale Italiana Trust Co. v. Westchester Artistic Works, Inc., 108 Conn. 304, 307, 142 A. 838; Gores v. Rosenthal, 148 Conn. 218, 221, 169 A.2d 639; and finally, if the rights of the parties are concluded so that further proceedings cannot affect them, then the judgment is final. State v. Fahey, 146 Conn. 55, 57, 147 A.2d 476; Watson v. Howard, 138 Conn. 464, 467, 86 A.2d 67; Northeastern Gas Transmission Co. v. Brush, 138 Conn. 370, 373, 84 A.2d 681.'

We conclude on the basis of precedent and the...