Jacobson v. Robington

• Decision Date: 24 February 1953
• Citation: 139 Conn. 532,95 A.2d 66
• Parties: JACOBSON v. ROBINGTON et al. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 66

95 A.2d 66

139 Conn. 532

JACOBSON v. ROBINGTON et al.

Supreme Court of Errors of Connecticut.

Feb. 24, 1953.

David R. Lessler, Bridgeport, for appellant.

D. Harold Cotter, Bridgeport, for appellees Puzinsky et al.

Harry B. Dinerstein, Bridgeport, Otto H. LaMacchia, Bridgeport, for other appellee.

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

INGLIS, Associate Justice.

This is an appeal from a judgment of foreclosure by sale and the supplemental judgment confirming the sale. Aside from a multitude of assignments of error directed at the finding, in none of which is there any merit, the principal claim of the named defendant, hereinafter referred to as the defendant, is that the trial court erred in denying her various motions to open the judgments.

The writ, with the accompanying complaint in the action, was served upon the defendant personally at the Connecticut state prison for women at Niantic, where she was imprisoned, on December 19, 1950. The case was returnable to the first Tuesday of January, 1951, and was brought to foreclose a mortgage of two pieces of real estate and a pledge of some jewelry and 180 shares of the common stock of Success, Inc. The mortgage and the pledge had been given by the defendant to the plaintiff to secure her indebtedness to him of $16,005, evidenced by a promissory note dated July 21, 1949. The complaint alleged that one of the pieces of real estate had been foreclosed by an incumbrancer prior to the present plaintiff. That foreclosure had been by sale and the present plaintiff had received, from the proceeds, $5971.53, which he had credited upon his note. Another defendant in the present action was Archie Puzinsky who, it was alleged, claimed an interest in the stock of Success, Inc.

The defendant failed to enter any appearance and on March 9, 1951, a default was entered against her. On April 13, judgment of foreclosure was rendered, fixing the debt at $11,574.73 and ordering that a sale of the mortgaged and pledged property be held on May 15 unless, prior to that time, the debt with interest and costs and expenses of sale be paid. The sale was held on May 15.

On June 5, before the supplemental judgment was rendered, the defendant through counsel entered her appearance and filed a motion (1) that the judgment be opened and (2) that the sale of the real estate be confirmed, but (3) that confirmation of the sale of the jewelry and the stock be denied. This motion was denied on June 12, and the supplemental judgment confirming the sale and ordering distribution of the proceeds thereof was rendered on June 15. On June 25 the defendant filed two motions. One was for permission to reargue the motion to open the judgment and for the opening of the judgment. The other was to set aside the confirmation of the sale of the jewelry and the stock. Again, on July 6, she filed another motion to open the judgment, alleging additional grounds therefor. These last three motions were denied on September 10, 1951. The defendant then appealed, stating that 'she is aggrieved by the decision of the court in denying her motions to reopen the judgment.'

We will not attempt to discuss each motion separately, because the grounds stated in some are repeated in others. We will, however, notice all of the grounds relied upon which merit discussion, irrespective of which motion sets them forth. The court has made a lengthy finding of facts which, as stated above, is not subject to correction. The essential facts found will be stated in connection with the discussion of the various contentions of the defendant to which they respectively pertain.

There is, of course, no doubt that the default was properly entered when the defendant failed to appear on or before the day next after the return day of the writ. General Statutes, § 7805. The effect of the entry of the default was to preclude her from making any defense in the action. Paiwich v. Krieswalis, 97 Conn. 123, 125, 115 A. 720. The judgment of foreclosure upon that default necessarily followed. Except where a judgment has been obtained by fraud or where an application is made on the ground of newly-discovered evidence, the power of a court to open a judgment after default is controlled by § 7963 of the General Statutes, which reads: 'Any judgment rendered or decree passed upon a default or nonsuit in the superior court, the court of common pleas or any municipal court may be set aside, within four months succeeding the date on which it was rendered or passed * * * upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the defendant was prevented by mistake, accident or other reasonable cause from appearing to make the same.' Since the statute permits an opening of a judgment after default if there is a showing of reasonable cause, the granting of a motion to open, at least unless it is based on a pure error of law, lies in the sound discretion of the court. Jartman v. Pacific Fire Ins. Co., 69 Conn. 355, 362, 37 A. 970. The denial of such a motion should not be held to be an abuse of discretion in any case in which it appears that the defendant has no defense; Bellonio v. V. R. Thomas Mortgage Co., 111 Conn. 103, 105, 149 A. 218; or that he has not been prevented from appearing by mistake, accident or other reasonable cause. Automotive Twins, Inc. v. Klein, 138 Conn. 28, 34, 82 A.2d 146; Barton v. Barton, 123 Conn. 487, 490, 196 A. 141.

We consider first the question whether the defendant was prevented from entering her appearance by mistake, accident or other reasonable cause. The finding bearing on this question sets forth the following facts: When the process was served on her, the defendant was confined in prison and remained so confined during the pendency of the case. This, however, did not make it impossible or even difficult for her to communicate with attorneys or retain them. During February, 1951, before the default was entered, she was ill, but her physical condition did not prevent her from entering an appearance. She was an intelligent business woman of wide experience and was fully aware on and after December 19, 1950, that the plaintiff had requested a sale of the security which he held against her indebtedness to him. That was prayed for in the complaint. She had recently had experience in connection with another foreclosure action brought against her by the First National Bank & Trust Company of Bridgeport. At the commencement of that action an attorney who had represented her in other matters had written her twice, stating that he could not represent her and advising her to get other counsel. In spite of that warning, she had not entered an appearance. She then had been defaulted, no notice of the default had been sent her, judgment of foreclosure by sale had been entered and the property had been sold, all without any notice except that which she received from the original writ and complaint. The property foreclosed in that action was one of the pieces mortgaged by her to Jacobson. The complaint in the present action stated she had been credited with the amount which Jacobson had received as a result of the foreclosure sale ordered in the earlier action. Consequently, the fact that there had been a foreclosure by sale in the other proceedings without additional notice to her was known by her. The court justifiably refused to find that she believed that she would receive any notice of proceedings in the action other than that given her by the service of the original process. The defendant was, therefore, fully apprised that in the present action judgment would enter against her if she failed to appear.

The defendant stresses the fact that the clerk of the Superior...