Pantlin and Chananie Development Corp. v. Hartford Cement and Bldg. Supply Co.

• Decision Date: 14 May 1985
• Citation: 196 Conn. 233,492 A.2d 159
• Court: Connecticut Supreme Court
• Parties: PANTLIN AND CHANANIE DEVELOPMENT CORPORATION v. HARTFORD CEMENT AND BUILDING SUPPLY COMPANY.

Page 159

492 A.2d 159

196 Conn. 233

PANTLIN AND CHANANIE DEVELOPMENT CORPORATION v. HARTFORD CEMENT AND BUILDING SUPPLY COMPANY.

Supreme Court of Connecticut.

Argued March 5, 1985.

Decided May 14, 1985.

Charles A. Sherwood, New Haven, for appellant (defendant).

Frank W. Murphy, Norwalk, for appellee (plaintiff).

Before PETERS, C.J., and HEALEY, SHEA, DANNEHY and SANTANIELLO, JJ.

DANNEHY, Associate Justice.

The primary issue raised by this appeal is whether it was an abuse of discretion for the trial court, Curran, J., to refuse to open and set aside a default judgment discharging the defendant's mechanic's lien on the real property of the plaintiff.

This is a second appeal by the defendant involving the same parties and the same subject matter. See Pantlin & Chananie Development Corporation v. Hartford Cement & Building Supply Co., 188 Conn. 253, 449 A.2d 162 (1982). The detailed statement in that opinion includes all of the material facts upon which the issues relevant to this appeal rest. Reference is therefore made to it, without reprinting in this connection. On the last appeal it was decided that the trial judge, Melville, J., should have considered the merits of the defendant's motion to open and set aside the default judgment; and the case was remanded to the trial court for further proceedings with regard to that motion. Id., 259, 449 A.2d 162.

At the mandated hearing in the Superior Court on February 1, 1983, before Curran, J., the case was submitted on the transcript and exhibits of the proceedings before Melville, J. After hearing arguments of counsel, the trial court denied the defendant's motion to open and set aside the judgment of November 13, 1979, Melville, J., discharging the defendant's mechanic's lien. ¹ The defendant appealed.

Our consideration of the propriety of an order denying a motion to set aside a judgment rendered upon default must be grounded upon General Statutes § 52-212 and certain rules which have been long recognized. The statute provides that any judgment rendered upon default may be set aside within four months upon the complaint or written motion of any person prejudiced thereby, showing reasonable cause, or that a good defense in whole or in part existed at the time of rendition of such judgment and that the defendant was prevented by mistake, accident or other reasonable cause from appearing to make the same. Practice Book § 377 contains similar language. It is thus clear that to obtain relief from a judgment rendered after a default, two things must concur. "There must be a showing that (1) a good defense, the nature of which must be set forth, existed at the time judgment was rendered, and (2) the party seeking to set aside the judgment was prevented from making that defense because of mistake, accident or other reasonable cause. General Statutes § 52-212; Practice Book § 377." (Citations omitted.) Eastern Elevator Co. v. Scalzi, 193 Conn. 128, 131, 474 A.2d 456 (1984). In the case of Eastern Elevator Co. v. Scalzi, we reiterated that in granting or refusing an application to open a judgment, the trial court is required to exercise a sound judicial discretion and its decision will be set aside only for an abuse of such discretion. Id., 131-32, 474 A.2d 456. We noted in Automotive Twins, Inc. v. Klein, 138 Conn. 28, 34, 82 A.2d 146 (1951), that the denial of a motion to set aside a default judgment should not be held to be an abuse of discretion in any case in which it appears that a defendant has not been prevented from appearing by mistake, accident or other reasonable cause. Of course, negligence is no ground for vacating a judgment, and we have held consistently that the denial of a motion to open a default judgment should not be held an abuse of discretion where the failure to assert a defense was the result of negligence. Eastern Elevator Co. v. Scalzi, supra, 193 Conn. 132, 474 A.2d 456.

The first contention raised by the defendant is that the trial court's refusal to set aside the default judgment was an abuse of discretion because the trial court lacked personal jurisdiction over the defendant as a result of defective service of the notice of hearing on the plaintiff's application for discharge of the mechanic's lien and the unreasonably brief period of time between notice and hearing. The defendant's claims under this contention may be grouped in the following manner: (a) that the defendant was improperly served; (b) that the service by a sheriff of the notice of hearing on the application for discharge of the lien was invalid; and (c) that the notice received was inadequate.

The record discloses that on November 6, 1979, the plaintiff filed an application seeking an order for discharge and/or reduction of the defendant's mechanic's lien on real estate of the plaintiff and/or an order allowing the substitution of a bond in lieu of the lien. On that same day a writ issued to the sheriff of Fairfield County for service. The deputy sheriff's return of service shows that a copy of the application with the order for a hearing thereon on November 13, 1979, was left with and in the hands of Charles (Chuck) B. Ruchin, the defendant's credit manager, at the defendant's usual place of business at 45 Granby Street in Hartford on November 8, 1979. The claim made in support of the motion is that lawful service on a proper party had not been made in accordance with General Statutes § 52-57(c) which permits service upon "any person who is at the time of service in charge of the office of the corporation...." ²

Nicholas J. Bredice, the deputy sheriff who made the service, testified. He stated that after he entered the defendant's office he identified himself and stated he was there to serve papers. Upon his inquiry as to whom he should give them, a clerk referred him to a Mr. Ruchin. When he found Ruchin, he identified himself and announced why he was there. Ruchin accepted the papers and gave the officer a business card which identified Ruchin as the credit manager. Ruchin never indicated that he was unauthorized to accept service. The defendant did not present any evidence to contradict the sheriff's testimony. The president of the corporation testified that he and a Mr. McNally were the only officers and directors of the corporation and that neither man was in the office at the time of service. He made no attempt to identify who was in charge of the office at that time.

It was for the trial court to weigh the evidence and determine the credibility of the witnesses. This court cannot and will not weigh the evidence contained in the record before us. Edgewood Construction Co. v. West Haven Redevelopment Agency, 170 Conn. 271, 272, 365 A.2d 819 (1976). If there is sufficient evidence in the record in support of the decision of the trial court such decision must be affirmed. We cannot say that the trial court erred in its determination that service upon the defendant's credit manager was proper.

The defendant next claims that the sheriff, who was from Fairfield County, had no authority to make service of process outside of his precincts upon the defendant in Hartford. General Statutes § 52-56 provides in pertinent part that "[i]f any officer has commenced the service of any civil process within his precinct, he may ... serve such process upon, any defendant therein named without his precinct...." The sheriff testified that he had made prior service in Fairfield County before going to Hartford on the date in question, but he was unable to recall whether that service was applicable to the present case. He later testified on redirect examination that he did recall making service on the Deering Company, one of the defendants located in Fairfield County, prior to making service in Hartford. The trial court then concluded that the service of process by the sheriff upon the defendant complied with the statutory requirements of § 52-56. As to the defendant's argument that there was but one defendant in this case and that the other parties were "collateral defendants," we state only that the trial court was justified in relying on this court's characterization of the parties in the first appeal taken by the defendant wherein we stated that "[f]our additional defendants" appeared at the November 13, 1979 hearing. Pantlin & Chananie Development Corporation v. Hartford Cement & Building Supply Co., supra, 188 Conn. 255, 449 A.2d 162. ³ Under the circumstances, we cannot say that the trial court erred in its finding that the sheriff had the authority to serve process on the defendant.

The final jurisdictional claim argued by the defendant is that the default judgment should have been set aside for the failure to provide adequate notice under General Statutes § 49-35(a). This statute, concerning applications for discharge or reduction of mechanic's liens,...