Perri v. Cioffi
| Decision Date | 16 November 1954 |
| Citation | 141 Conn. 675,109 A.2d 355 |
| Parties | John PERRI et al. v. Angela CIOFFI. Supreme Court of Errors of Connecticut |
| Court | Connecticut Supreme Court |
Benjamin M. Chapnick, New Haven, for appellant (defendant).
Harold F. Rosen, New Haven, for appellees (plaintiffs).
Before INGLIS, C. J., and BALDWIN, WYNNE, DALY and O'SULLIVAN, JJ.
On this appeal the sole question is whether the court erred in rendering a summary judgment.
It is alleged in the complaint that in January, 1952, the named plaintiff instituted an action against Dominick Cioffi and attached an automobile; that the attachment was released by the substitution of a bond which the present defendant signed as surety; that in the action judgment was rendered on February 19, 1953, for the present plaintiffs to recover $250 damages and costs taxed at $74.20; that on March 10, 1953, the plaintiffs took out execution, pursuant to which demand for payment was made at the last known place of abode of Dominick Cioffi and also upon his attorney, but not on Dominick Cioffi personally because he could not be located, and that the judgment has not been paid. The plaintiffs seek to recover of the defendant as surety on the bond. The bond sued upon was conditioned as follows: '[I]f the said Dominick Cioffi, shall pay any judgment that may be recovered against him in such action not exceeding the amount of $999.00 dollars, the amount of damages demanded by said writ, or in default of such payment, shall pay to the officers having the execution issued on such judgment, on demand, the actual value of the interest, not exempt from attachment and execution, of the said Dominick Cioffi, in said attached property at the time of such attachment, not exceeding said amount of $999.00 Dollars, then this bond shall be void, but otherwise in full force and effect.' This is in the form prescribed by the statute relating to attachment bonds. General Statutes, § 8047.
Before any answer was filed the plaintiffs moved for a summary judgment, accompanying their motion with an affidavit to the effect that $339.20 was due them on the former judgment. Within ten days thereafter the defendant filed her affidavit of defense as required by Practice Book, § 53. Upon the plaintiffs' motion this affidavit was ordered stricken from the files and another motion for summary judgment was made. The defendant filed another affidavit of defense which, upon the plaintiffs' motion, was also ordered stricken. Summary judgment for the plaintiffs was then rendered. From that judgment this appeal has been taken.
The defendant contends that her affidavits set forth two valid defenses against a summary judgment: first, that the plaintiffs' cause of action is not for a liquidated demand, and second, that the defendant is not liable on the bond because no demand for payment of the judgment was made upon Cioffi. Section 52 of the Practice Book empowers the court to render a summary judgment in actions to recover a debt or a liquidated demand in money and in certain other classes of action specifically mentioned. 1 Since the plaintiffs' cause of action is not one of the latter, it becomes necessary to determine whether it is an action for a liquidated demand. That is, was the plaintiffs' claim one for an amount certain or susceptible of being made certain in amount by mathematical calculations from factors which are or ought to be in the possession or within the knowledge of the party to be charged? Rifkin v. Safenovitz, 131 Conn. 411, 414, 40 A.2d 188.
The gist of the defendant's argument on this point is that her liability on the bond is not for any fixed sum but may be satisfied by the payment of the value of Dominick Cioffi's interest in the attached automobile and that that value is uncertain and, therefore, unliquidated in amount. The answer to this argument is that the plaintiff in a suit against the surety on such a bond as the one before us may recover the full amount of the judgment he has recovered against the principal on the bond, a liquidated sum, unless the surety can prove that the value of the interest of the principal in the attached property is less than the amount of the judgment. The burden of proof on that subject is on the surety. General Statutes, § 7900; Whitney Frocks, Inc., v. Jaffe, 138 Conn. 428, 432, 85 A.2d 242; Evans v. Rappaport, 109 Conn. 362, 364, 146 A. 611; Mallory v. Hartman, 86 Conn. 615, 619, 86 A. 567; Birdsall v. Wheeler, 58 Conn. 429, 437, 20 A. 607.
In neither of her affidavits did the defendant make the statement that the value of her principal's interest in the attached automobile was less than the amount of the judgment rendered against him. The most she stated was that the condition of the bond was not complied with and that the value of the attached car was not established. It is from these statements that she argues that the plaintiffs' claim was unliquidated in amount. This is not sufficient. For the purpose of determining the question whether the case was a fit one under the rule for a summary judgment, the court was bound to consider that the claim sued upon was a liquidated demand until the defendant, by affidavit, had affirmatively sworn that to the best of her knowledge and belief the attached car was of a value less...
To continue reading
Request your trial
-
United Oil Co. v. Urban Redevelopment Commission of City of Stamford
...law and that there is no defense on the facts. Jensen v. Nationwide Mutual Ins. Co., 158 Conn. 251, 258, 259 A.2d 598; Perri v. Cioffi, 141 Conn. 675, 680, 109 A.2d 355. Thereafter, it should hear the parties on the questions of law, requiring, where appropriate, the filing of pleadings for......
-
Doe v. Town of W. Hartford
...(2017).5 In the trial court's view, the affidavit was not so " 'palpably false' " as to warrant its striking. See Perri v. Cioffi , 141 Conn. 675, 680, 109 A.2d 355 (1954) ; Zbras v. St. Vincent's Medical Center , 91 Conn. App. 289, 293, 880 A.2d 999, cert. denied, 276 Conn. 910, 886 A.2d 4......
-
Callender v. Reflexite Corp.
...such a judgment, however, there would have to be a finding of the court to the effect that the affidavit was false.’ Perri v. Cioffi, 141 Conn. 675, 680, 109 A.2d 355 (1954).” Zbras v. St. Vincent's Medical Center, 91 Conn.App. 289, 293, 880 A.2d 999, cert. denied, 276 Conn. 910, 886 A.2d 4......
-
Madden v. Deere Credit Services, Inc.
...131 Conn. 411, 414, 40 A.2d 188 (1944) quoting Cochrane v. Forbes, 267 Mass. 417, 420, 166 N.E. 752 (1929); see Perri v. Cioffi, 141 Conn. 675, 678, 109 A.2d 355 (1954). It is sufficient for this purpose if the debt is measurable by a fixed or established external standard, or by a standard......
-
Is Administrative Summary Judgment Unlawful?
...it was "one to recover a 'liquidated demand in money' arising on a 'contract' within the provisions of the section."); Perri v. Cioffi, 109 A.2d 355, 356 (Conn. 1954) ("Section 52 of the Practice Book empowers the court to render a summary judgment in actions to recover a debt or a liquidat......
-
Thirteen Years Later: the Impact of the Uniform Child Custody Jurisdiction Act on Connecticut Courts
...considering the history If delays in the case as an indication that the trial court had not abused it's discretion.) 13 Perri v. Goff, 141 Conn. 675 1119 Conn. App. 340, 563 A.2d. 299 (1989) (discussed infra at note 26 and accompanying text.) 15 Id. at 302. P. B. § 2036 was repealed as of J......