Silver v. Kingston Realty Corp.

• Decision Date: 16 February 1932
• Citation: 114 Conn. 349,158 A. 889
• Parties: SILVER et al. v. KINGSTON REALTY CORPORATION.
• Court: Connecticut Supreme Court

158 A. 889

114 Conn. 349

SILVER et al. v. KINGSTON REALTY CORPORATION.

Supreme Court of Errors of Connecticut.

February 16, 1932

Appeal from Superior Court, Hartford County; Frederick M. Peasley and Alfred E. Baldwin, Judges.

Application by Joseph S. Silver and others for the appointment of a receiver of rents in a foreclosure action opposed by the Kingston Realty Corporation; receiver appointed by Hon Frederick M. Peasley, a judge of the superior court, motion to revoke the appointment denied by the court, and appeal by the defendant.

No error.

Benjamin Slade, of New Haven, for appellant.

David Levy and Solomon Elsner, both of Hartford, for appellees.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

BANKS J.

This was an action to foreclose a mortgage on real estate, by writ dated April 8, 1931, and served upon the defendant on April 9, 1931. On April 8th, upon application of the plaintiff, and without notice to the defendant, a receiver of rents was appointed by Judge Peasley. On April 14th the defendant filed a written motion to revoke the appointment which, after a hearing, was denied on May 12, 1931, and the defendant appealed.

The defendant contends that there was error in the appointment of the receiver because it was made without notice to it, and that the appointment and the refusal to revoke it were erroneous because neither the complaint nor the application for the appointment alleged any facts justifying such an appointment.

The question of notice has, through the sequence of events become immaterial. The defendant came voluntarily into court after the order of appointment, and, at the hearing upon its motion to revoke the appointment, had the opportunity to present its objections to the appointment. Having had its day in court, and the benefit of everything it could possibly have obtained had it been present when the original appointment was made, it cannot now raise the objection of lack of notice. The court's refusal to revoke the appointment amounted, in substance, to a new appointment made after the parties appeared and were heard. Universal Savings & Trust Co. v. Stoneburner, 113 F. 251, 51 C. C. A. 208; Elwood v. First Nat. Bank of Greenleaf, 41 Kan. 475, 21 P. 673; Bristow v. Home Bldg. Co., 91 Va. 18, 20 S.E. 946, 947.

Neither the complaint nor the application for the appointment of a receiver contained allegations of facts sufficient to justify the appointment of a receiver of rents, and the original appointment was therefore an improvident one. 1 Wiltzie on Mortgage Foreclosure (4th Ed.) § 557. In the motion to revoke the appointment, however, it was alleged that the property subject to the plaintiff's mortgage was of sufficient value to furnish ample security for the payment of the first mortgage thereon, as well as the amount due upon the plaintiff's mortgage, and that no equitable grounds appeared for the appointment of a receiver. This motion required no answer or other pleading, and raised the issue of the insufficiency of the security for the plaintiff's mortgage and of the existence of equitable grounds for the appointment of a receiver. The defect in the complaint and the application was covered by the allegations of the defendant's motion. When a defendant chooses to understand a complaint to contain all the facts essential to his liability, and answers those which have been omitted, he supplies the defect in the complaint and submits for the decision of the court the issues raised by his own pleading. Wall v. Toomey, 52 Conn. 35; Vickery v. New London Northern Ry. Co., 87 Conn. 634, 89 A. 277; 49 Corpus Juris, § 1274, and cases there cited.

At the hearing upon the defendant's motion to revoke the appointment of the receiver the court had before it the question of the insufficiency of the plaintiff's security, and the existence of equitable grounds for the appointment of a receiver. We must assume that the facts as well as the defendant's claims of law, were all before the court upon the argument of the motion to revoke the appointment, and its denial of the motion imports a conclusion that the security was insufficient and that equitable grounds appeared for the appointment of a receiver of rents, and a finding of the issues in favor of the plaintiff.

There is no error.

In this opinion the other Judges concurred.^[1]

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Notes:

^[1] The following is the opinion of November 4, 1931, by Maltbie, C.J.:

This is an action for the foreclosure of a real estate mortgage brought to the May term, 1931, of the superior court by writ dated April 8, 1931. On that day the plaintiffs sought and obtained from a judge of that court the appointment of a receiver of rents. On April 24th the defendant filed an application to revoke this appointment which, on May 12th, the court denied. On May 28th a stipulation was filed stating the amount of the debt and providing for a foreclosure by...