Serrano v. Behar
| Decision Date | 26 July 1988 |
| Docket Number | No. 5829,5829 |
| Citation | 544 A.2d 250,15 Conn.App. 308 |
| Court | Connecticut Court of Appeals |
| Parties | Roberto SERRANO et al. v. Roberto BEHAR. |
Jason M. Dodge, Hartford, for the appellants (plaintiffs).
Frank H. Cathcart, Hartford, for the appellee (defendant).
Before BIELUCH, EDWARD Y. O'CONNELL and STOUGHTON, JJ.
The plaintiffs appeal from the judgment rendered following the opening of a default judgment, in their action for rescission of a real estate contract, money damages and return of a deposit.
The record discloses that the defendant was defaulted for failure to appear for trial on March 15, 1985, and that on April 12, 1985, judgment was rendered for the plaintiffs in the amount of $14,994.56 plus costs.
On July 12, 1985, the defendant filed a motion to open the judgment. The trial court did not act upon the motion because the defendant failed to file an accompanying affidavit required by General Statutes § 52-212 1 and Practice Book § 377. 2 No further action was taken in the case until August 15, 1985, when the defendant filed a second motion to open the judgment. This second motion, which met the statutory requirements and rules of practice, was heard as a contested matter and granted on August 26, 1985, despite the observation of the judge presiding over the short calendar docket that the motion was filed more than four months after entry of judgment. The case was then referred to a factfinder, upon whose finding a judgment was rendered for the plaintiffs, in the reduced amount of $2500. 3 The plaintiffs claim that the trial court did not have jurisdiction to open the default judgment of April 12, 1985. 4 We agree.
With certain exceptions not applicable here, General Statutes § 52-212a 5 and Practice Book § 326 6 each provide for the opening of any civil judgment, conditioned on the filing of a motion within four months of the rendering of a judgment. General Statutes § 52-212, and Practice Book § 377, see footnotes 1 and 2, supra, reiterate the four month rule that is mandated for the opening of all civil judgments, and add the further requirement that motions to open default judgments have an affidavit annexed thereto articulating the reason for the movant's default.
A trial court has no jurisdiction to open a judgment beyond the four month period. See Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517, 518, 494 A.2d 549 (1985). The defendant's motion was filed on August 15, 1985, a time beyond the four month limit. The defendant argues that the defective motion of July 12, 1985, tolled the running of the time limit, but fails to furnish authority to support this theory. To the contrary, in Van Mecklenburg, supra, for example, our Supreme Court held that when a plaintiff filed a timely motion to open judgment after dismissal for failure to diligently prosecute, but failed to include a filing fee, an untimely motion subsequently filed with a proper fee would not relate back to the timely but incomplete motion.
In addition, the defendant does not claim that the second motion to open, filed August 15, 1985, is a correction or amendment to his timely but incomplete, July 12, 1985 motion, which should therefore be considered, nunc pro tunc, to have been filed on July 12, 1985.
We conclude that the motion to open was not timely filed and that, therefore, the trial court lacked jurisdiction to open the default judgment.
There is error, the judgment is set aside and the case is remanded with direction to reinstate the April 12, 1985 default judgment.
In this opinion the other Judges concurred.
1 General Statutes § 52-212 provides in pertinent part: "(a) Any judgment rendered or decree passed upon a default or nonsuit in the superior court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms as respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense."
2 Practice Book § 377 provides in pertinent part: ...
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...A.2d 487 (1998); Ziruk v. Bedard, 45 Conn.App. 137, 695 A.2d 4, cert. denied, 243 Conn. 905, 701 A.2d 339 (1997); Serrano v. Behar, 15 Conn.App. 308, 311, 544 A.2d 250 (1988). "After the expiration of the four-month period provided by [Practice Book §17-4, formerly §]326 a judgment may not ......
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Morelli v. Manpower, Inc.
...J., denied the motion to open. Notice of this decision was issued on December 9, 1991.The denial was based on Serrano v. Behar, 15 Conn.App. 308, 544 A.2d 250 (1988), which held that a trial court has no jurisdiction to open a judgment beyond the four month period described in General Statu......
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Fontaine v. Thomas, (AC 17511)
...§ 52-212. Normally, "[a] trial court has no jurisdiction to open a judgment beyond the four month period." Serrano v. Behar, 15 Conn. App. 308, 311, 544 A.2d 250 (1988). The record discloses, however, that counsel for the plaintiff failed to mail notice of the default judgment to the defend......
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Morelli v. Manpower, Inc.
...J., denied the motion to open. Notice of that decision was issued on December 9, 1991. "The denial was based on Serrano v. Behar, 15 Conn.App. 308, 544 A.2d 250 (1988), which held that a trial court has no jurisdiction to open a judgment beyond the four month period described in General Sta......