Sachs v. Nussenbaum

• Decision Date: 23 July 1918
• Citation: 104 A. 393
• Parties: SACHS v. NUSSENBAUM et al.
• Court: Connecticut Supreme Court

104 A. 393

SACHS

v. NUSSENBAUM et al.

Supreme Court of Errors of Connecticut.

July 23, 1918.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]

Appeal from Superior Court, Fairfield County; William M. Maltbie, Judge.

Application under Gen. St. § 857, by the defendants in an action by Barnith Sachs against Jennie Nussenbaum and another to secure the reduction or dissolution of an attachment of real estate. From a judgment dissolving the attachment as to the real estate of one of the defendants, plaintiff appeals. Error, and order of dissolution set aside.

Jennie Nussenbaum and Fanny Silverman are, respectively, principal and surety upon a bond given to the appellant December 20, 1917, pursuant to a judicial order and in substitution for a mechanic's lien for $8,300 filed by him against the property of the principal obligor which was thereupon dissolved. The condition of the bond, after reciting the nature, existence, and amount of the lien, proceeds as follows:

"Now, therefore, if the said Nussenbaum shall pay or cause to be paid to Barnith Sachs or his assigns any judgment that may be rendered against her by any court of competent jurisdiction not exceeding the amount of $8,300, the amount claimed under the lien with interest and costs, on demand, then this bond shall be void, otherwise to remain in full force and effect."

On December 31, 1917, Sachs instituted an action against the obligors on the bond, both principal and surety. The complaint set out the existence of the lien, its dissolution, and the substitution therefor of the bond in suit pursuant to an order of Judge Curtis. Judgment was asked (1) upon the bond in such an amount as the court might adjudge to have been secured by the lien with interest and costs and (2) for $10,000 damages. In this action real estate of both defendants was attached. They thereupon brought an application under section 857 of the General Statutes to Judge Maltbie, and pursuant to that application the plaintiff was summoned to appear before him as prescribed in the statute and for the purposes therein specified. He appeared and after a hearing Judge Maltbie ordered that the attachment, in so far as it concerned the property of Jennie Nussenbaum, stand as made and that the attachment made of the property of the defendant Silverman be dissolved for the reason, in substance, that no apparent claim against her was stated in the complaint since she could not be made liable until a court had determined the amount secured by the lien and there had been a failure to pay it. The plaintiff, desiring to appeal from the order in so far as it directed the dissolution of the Silverman attachment, requested Judge Maltbie to make a finding of facts. The appellees thereupon filed their objections to compliance with such request claiming that no appeal would lie from the order. The objections were overruled, a finding made, and thereafter this appeal taken.

Frank L. Wilder, of Bridgeport, for appellant. Robert E. Deforest, of Bridgeport, for appellees.

PRENTICE, C. J. (after stating the facts as above). [1] On the threshold of this case we are met with the question of this court's jurisdiction raised by the appellee's objections to the allowance of an appeal from the order of dissolution. They then insisted, and now insist, that our statute authorizes no appeal from such orders. The statute governing the situation presented is section 807 of the General Statutes. It is there provided that:

"When the jurisdiction of any matter or proceeding is or shall be vested in a judge of the superior court * * * any party to such matter or proceeding who feels aggrieved by any of the decisions or rulings of such judge upon any questions of law arising therein, may appeal from the final judgment of said judge in such matter or proceeding, in the manner hereinbefore provided for an appeal from the judgments of said courts respectively, to the Supreme Court of Errors," etc.

Two conditions are thus fixed as conditions precedent to the right of appeal, to wit: First, that final judgment in such matter or proceeding has been rendered; and, second, that the judge has made a ruling or decision involving a question of law.

The proceeding before Judge Maltbie was one seeking relief from a claimed excessive attachment made in an action brought to the superior court. As such, jurisdiction over it was confined to a judge of that court. Rev. Gen. Stat. § 857. The court in which the action in connection with which the attachment was made was without power to act in the matter, and under the statute could not be given such power. The proceedings before Judge Maltbie were therefore not only in fact and form but also of necessity entirely independent of that action and not incidental to it. It began with the bringing of the application and ended with the order of dissolution. When that order was made, the matter was at an end, and the proceeding and parties were, save for the possibility of appeal, out of court. The order could not be regarded as in any sense an interlocutory one made in progress of the pending suit. That progress was not concerned with or in any way affected by it. The order made final disposition of a judicial or quasi judicial proceeding authorized by statute, and therefore was a "final judgment" within the meaning of our statutes regulating appeals. Barber v. International Co., 74 Conn. 652, 657, 51 Atl. 857, 92 Am. St. Rep. 246...