Jenkins v. Bishop Apartments, Inc.

• Decision Date: 28 May 1957
• Citation: 132 A.2d 573,144 Conn. 389
• Court: Connecticut Supreme Court
• Parties: Harry E. JENKINS v. BISHOP APARTMENTS, Inc. Supreme Court of Errors of Connecticut

Page 573

132 A.2d 573

144 Conn. 389

Harry E. JENKINS v. BISHOP APARTMENTS, Inc.

Supreme Court of Errors of Connecticut.

May 28, 1957.

Nelson Harris, New Haven, with whom, on the brief, was Joseph R. Apter, New Haven, for appellant (plaintiff).

Milton A. Bernblum, New Haven, with whom, on the brief, were Marvin C. Gold and Annette E. P. Gold, New Haven, for appellee (defendant).

Before O'SULLIVAN, C. J., and BALDWIN, WYNNE, DALY and KING, JJ.

BALDWIN, Associate Justice.

The defendant brought an action against the plaintiff and his wife for unpaid rent. Process was served on them on March 20, 1953, and returned to the City Court of New Haven on April 14. A default was entered on May 1 and, after a hearing in damages, judgment was rendered on May 22, 1953. Incorporated in and made part of the judgment was an order for payment to be made by the plaintiff to the clerk of the City Court as a method under the statute of satisfying the judgment by instalments. General Statutes § 8102; Practice Book, § 46. The plaintiff and his wife had due notice of these proceedings. On April 9, 1953, the plaintiff filed a petition in bankruptcy but failed to schedule the defendant as a creditor. In June, 1953, the order for payment not having been complied with, the defendant obtained an execution which the court has found was satisfied on or about August 1, 1953. Cum.Sup.1955, § 3202d. The plaintiff has assigned error in this finding. The sheriff's return on the execution in the original action states that the execution was satisfied in full on January 22, 1954. The return is prima facie evidence of the facts stated therein. Cugno v. Kaelin, 138 Conn. 341, 343, 84 A.2d 576; Hartley v. Vitiello, 113 Conn. 74, 79, 154 A. 255. The finding is corrected accordingly. On August 5, 1953, the plaintiff amended the schedule in his petition in bankruptcy to include the defendant's claim. On November 20, and again on December 21, the plaintiff applied to the City Court for a recall of the execution and a stay of proceedings, both of which the court denied. He then instituted the present action and specifically asked for the opening of the judgment in the original action, the recall of the execution, and the granting of such further legal and equitable relief as might be appropriate. The court found for the defendant and the plaintiff has appealed.

Before we attempt to resolve the legal issues it is necessary to consider the manner in which they have been presented. Basically, the plaintiff is seeking the correction of errors which he claims were committed by the trial court in the original action to recover unpaid rent brought against him by this defendant. He failed, however, to appeal under General Statutes, § 8003 or § 3098d of the 1955 Cumulative Supplement or to seek a writ of error under § 8015. In spite of the various forms of relief incorporated in the complaint, the parties, both at the trial and in argument to this court, have treated the action as a petition for a new trial under § 8013, and the plaintiff has limited himself to the claim that the original judgment should be opened and a new trial should be ordered. Since the case was tried on that theory, we shall determine the merit of the appeal on the same basis. Maltbie, Conn.App.Proc. (2d Ed.) § 42. None of the grounds for a new trial recited in § 8013 are present unless the case falls within the general clause of the statute, 'other reasonable cause.' We have said that this clause includes 'every cause for which a court of equity could grant a new trial, such as, for example, fraud, accident and mistake.' Milestan v. Tisi, 140 Conn. 464, 469, 101 A.2d 504, 506.

We shall consider next whether the facts of the case bring it within § 8013. The Bankruptcy Act gives to the federal courts exclusive jurisdiction in bankruptcy matters. 30 Stat. 545, as amended, 11 U.S.C.A. § 11; Rockville National Bank v. Latham, 88 Conn. 70, 71, 89 A. 1117. The filing of a petition in, or an adjudication of, bankruptcy does not, however, ipso factor oust a state court of jurisdiction. To avail himself of the privileges of the Bankruptcy Act, a bankrupt must take timely and appropriate action in any cause pending against him in a state court. Rood v. Stevens Co., 49 Conn. 45, 47; Brown v. J. & E. Stevens Co., 52 Conn. 110, 115; 1 Collier, Bankruptcy (14th Ed.) §§ 11.08, 17.32; 11 U.S.C.A. § 29, notes 1, 3; 8 C.J.S. Bankruptcy § 490, p. 1363. If a judgment has not been rendered in a pending action, application for a stay of proceedings should be made or the discharge in bankruptcy, if it has been granted, should be properly pleaded as an affirmative defense. In re Innis, 7 Cir., 140 F.2d 479, 480, certiorari denied 322 U.S. 736, 64 S.Ct. 1048, 88 L.Ed. 1569. Upon hearing, the essential elements of the application or of the defense pleaded, as the case may be, must be proven. Allard v. Estes, 292 Mass. 187, 193, 197 N.E. 884; Star Braiding Co. v. Stienen Dyeing Co., 44 R.I. 8, 10, 114 A. 129; McGowan v....