Paiwich v. Krieswalis

• Decision Date: 23 December 1921
• Citation: 97 Conn. 123,115 A. 720
• Court: Connecticut Supreme Court
• Parties: PAIWICH v. KRIESWALIS.

115 A. 720

97 Conn. 123

PAIWICH v. KRIESWALIS.

Supreme Court of Errors of Connecticut.

December 23, 1921

Appeal from Court of Common Pleas, New Haven County; Isaac Wolfe Judge.

Action by Mrs. George Paiwich against Roman Krieswalis. After judgment by default in summary process for failure to appear in the court of common pleas on writ of error to justice court, had been rendered, the court granted a motion to erase the case from the docket, and rendered judgment accordingly and plaintiff appeals. Error and judgment set aside.

Charles S. Hamilton, of New Haven, for appellant.

John F. McDonough, of Waterbury, for appellee.

BURPEE, J.

The record shows that the judgment in summary process which this writ of error was intended to reverse was rendered by a justice of the peace in New Haven county March 29, 1920; that this writ was allowed and issued by the clerk of the court of common pleas in that county May 12, 1920; that it was served upon the defendant in person on the same day, and returned to the court on the first Tuesday of June, 1920, that is, on June 1, 1920; that on June 15, 1920, no appearance having been entered by the defendant, judgment by default was rendered against him; that on June 21, 1920, the defendant filed his motion to erase this cause from the docket, and on June 22, 1920, the plaintiff filed her motion to strike this motion of the defendant from the files; and that on June 30 1920, the court denied the plaintiff's motion, granted the defendant's motion, and adjudged that the case be erased from the docket. From this action of the court the plaintiff appeals.

As the pleadings presented the claims of the parties to the court below, the first matter to be considered and determined was the plaintiff's motion to strike the defendant's motion from the files. The first of the reasons set up in support of this motion was stated as follows:

" At the time an attempt was made to file said paper (defendant's motion to erase the case from the docket) judgment by default for want of appearance had already been entered in the case, and it was then too late to file any pleadings in said cause, and nothing remained but to fix the form of judgment, and all pleadings were at an end."

We think this reason is sound and sufficient.

The court of common pleas had jurisdiction of the cause of action by authority of General Statutes, § 5852, and over the defendant by reason of personal service. Its jurisdiction was not challenged in any pleading. The process served on the defendant gave him full notice of the character of the plaintiff's claims in the action. He was bound either to enter his appearance on or before the second day of the session of the court, or to submit to the consequences of his default. General Statutes, § 5622; Fisher, Brown & Co. v. Fielding, 67 Conn. 108, 34 A. 714, 32 L.R.A. 236, 52 Am.St.Rep. 270. His default was an admission by him of the truth of the proposition of law and of the facts alleged in the complaint. On the record, the defendant conceded the plaintiff's right to bring and pursue this suit, the legality of the claims made by him, and his right to a judgment of the kind asked for. New York, N.H. & H. R. Co. v. Hungerford, 75 Conn. 76, 78, 52 A. 487; Lord v. Litchfield, 36 Conn. 116, 131, 4 Am.Rep. 41; Cromwell v. County of Sac, 94 U.S. 351, 356, 24 L.Ed. 195. That judgment deprived the defendant of any right to plead. Starr Cash & Package Car Co. v. Starr, 69 Conn. 440, 446, 37 A. 1057. It was conclusive upon the parties while it remained in force. Hurlbut v. Thomas, 55 Conn. 181, 10 A. 556, 3 Am.St.Rep. 43; Bradford v. Bradford, 5 Conn. 127; 23 Cyc. 767, 1236. By its effect this cause was removed from the docket of causes open to further action by any pleading, and placed in the records of judgments. The judgment could be set aside and the cause reinstated on the docket only upon written motion showing reasonable cause, and that the defendant had been prevented by some reasonable cause from appearing to make a good defense which existed at the time of the rendition of the judgment by default. General Statutes, § 5780. Nothing else could be done in this action except to fix the terms of the judgment already entered, and set them in permanent form in a judgment file. The plaintiff in error became then absolutely entitled to a judgment reversing the judgment in the summary process. 23 Cyc. 767. If she further insisted on her claim for damages, she would have an opportunity in a hearing to prove them to the satisfaction of the court. Even upon this subject the defendant had no right to be heard, without leave of the court. Starr Cash & Package Car Co. v. Starr, 69 Conn. 440, 446, 37 A. 1057.

In this appeal we are not concerned with other adequate remedies at law which were available to the defendant if he could claim and establish that he had had no opportunity to make a good defense which he had, and had been prevented from making in this suit by accident, fraud, or improper conduct of the plaintiff while free from fault himself. If the defendant had really been aggrieved by the judgment against him, the law, even after his default, furnished him ample remedy if he had chosen to claim it in a lawful way. General Statutes, § 5850; Dante v. Dante, 93 Conn. 160, 105 A. 353.

Disregarding these sufficient means to obtain relief, and without alleging any of the circumstances and conditions which must be proved in any application to set aside a judgment, the defendant attempted, by means of a pleading in an action already closed by judgment, to attack the validity of the proceedings, and to ask that the cause, including the judgment, be erased from the docket. This motion was filed too late, and should have been struck from the files.

It may be added that, if this motion had been filed at a proper time, it would have been...