Testa v. Carrolls Hamburger System, Inc.

• Decision Date: 06 December 1966
• Citation: 154 Conn. 294,224 A.2d 739
• Court: Connecticut Supreme Court
• Parties: Giovaninna S. TESTA v. CARROLLS HAMBURGER SYSTEM, INC.

Page 739

224 A.2d 739

154 Conn. 294

Giovaninna S. TESTA v. CARROLLS HAMBURGER SYSTEM, INC.

Supreme Court of Connecticut.

Dec. 6, 1966.

Thomas C. Gerety, Bridgeport, with whom, on the brief, was Leonard A. Schine, Bridgeport, for appellant (defendant).

Donald McPartland, Waterbury, with whom, on the brief, was J. Warren Upson, Waterbury, for appellee (plaintiff).

Before KING, C. J., and ALCORN, HOUSE, THIM and RYAN, JJ. KING, Chief Justice.

This is an appeal from a denial of the defendant's motion to open and set aside a default and a judgment subsequently rendered in favor of the plaintiff after a hearing in damages. The defendant agrees that its motion was filed pursuant to General Statutes § 52-212. ¹ A brief analysis of that statute and its requirements is desirable, if not essential, to a determination of this appeal.

Prior to the Revision of 1958, the statute consisted of two sections. The first section (Rev.1949, § 7963) comprised all of what is now § 52-212 except for the last two sentences, and the second section (Rev. 1949, § 7964) comprised those last two sentences. The two sections formed, respectively, §§ 5649 and 5650 of the 1930 Revision, §§ 5780 and 5781 of the 1918 Revision, and §§ 748 and 749 of the 1902 Revision.

There has been but one material amendment in all this long period. This was accomplished by chapter 75 of the 1915 Public Acts. It amended the first section (Rev. 1902, § 748) in two respects. The first, immaterial to this appeal, was a change to four months in the limitation on the time in which action could be taken under the statute. The second change, which is material to this appeal, was the addition of the words 'or written motion' after the word 'complaint'. Thus, the 1915 amendment added the right to invoke the statute by written motion as an alternative to proceeding by complaint. But no change was made in the second section. Rev.1902, § 749. The requirements of the first section, as to the contents of the complaint or written motion, whichever was utilized, were left unchanged, as well as the procedural requirements imposed in the second section (Rev.1902, § 749), which then, as now, included a verification by the complainant or his attorney, a statement 'in general terms' of the nature of the defense, a statement which shall 'particularly set forth the reason why the defendant failed to appear,' and the giving of notice of the pendency of the proceeding to the adverse party.

The defendant claims that the failure of the 1915 amendment to insert the words 'or written motion' after the word 'complaint' in the second section indicates an intention that the requirements of that section should apply only when a complaint, as distinguished from a written motion, is used. To accept such a construction of the 1915 amendment would allow persons seeking to open judgments after default to avoid the requirements of the second section by the simple expedient of utilizing a motion rather than a complaint. These requirements are clearly intended to confine the opening of default judgments to meritorious cases. They constitute a basic limitation on the opening of default judgments. They are not merely procedural requirements applicable only to complaints and inapplicable to motions. The history and evolution of the statute disclose no indication of a legislative intent to impose different standards on the availability of the statutory remedy dependent upon the manner in which the party invokes it. Furthermore, such a construcvtion would be unreasonable and to state it is sufficient to demonstrate its lack of merit. The defendant escaped none of the requirements of the statute by choosing to proceed by written motion rather than by complaint.

In its application to relief from judgments rendered after a default for failure to appear, the statute in many ways is similar to General Statutes § 52-270, which regulates the granting of new trials and which was recently construed and applied in a somewhat similar situation in Black v. Universal C.I.T. Credit Corporation, 150 Conn. 188, 187 A.2d 243. Indeed, where § 52-212 is an appropriate remedy, as in the instant case, and is utilized, it is extremely doubtful whether the same basic issue can be relitigated in a proceeding under § 52-270. Id., 150 Conn. 195, 187 A.2d 243; see also Paiwich v. Krieswalis, 97 Conn. 123, 126, 115 A. 720.

We now turn to the material facts of this case. The plaintiff sued the defendant for damages for breach of a leasing contract. The writ was made returnable to the Superior Court on the first Tuesday of June, 1962. On September 8, 1962, the defendant duly appeared by attorney. The pleadings were closed and on November 21, 1962, the case was claimed for the trial list. The defendant's attorney, on January 16, 1964, moved to withdraw his appearance. This motion was successfully opposed by the plaintiff and was denied on February 21, 1964. On the same day, counsel for the defendant wrote the defendant informing it of his intention to withdraw and advising it to have other counsel enter an appearance forthwith to protect its interests. After this notice to the defendant, a second motion for permission to withdraw was filed by the defendant's counsel. This motion was granted on March 26, 1964, and on the same day his appearance was withdrawn. See Practice Book § 44. On June 5, 1964, the plaintiff secured a default against the defendant for failure to appear. ² Not until more than ten months later, on April 30, 1965, after a hearing in damages, was judgment rendered against the defendant. ³ An execution against the defendant was returned unsatisfied on August 2, 1965. On August, 12, 1965, the defendant's attorney again entered his appearance and filed the instant motion under § 52-212.

In this motion, the defendant's attorney stated that he originally withdrew his appearance because the defendant corporation was a wholly owned subsidiary of a named parent company and he had been informed that the parent company had filed in Illionis a petition under chapter 11 of the Bankruptcy Act, so that he had expected the defendant's assets to be 'swallowed up' in the bankruptcy proceedings, leaving the defendant no funds to discharge its debts or to pay for the defense of the instant action. The motion continued with a statement that the attorney had since been informed that, because of 'confusion attendant upon the bankruptcy proceedings', the defendant had failed to secure counsel; that he is now informed that the parent company has come out of the bankruptcy proceedings and that the defendant is now in a position to undertake the defense of the action; that he now believes a good defense exists in accordance with the pleadings as originally filed; and that he is now informed that this defense was not made because of the 'confusion surrounding the bankruptcy proceedings' of the parent company.

It is obvious that as far as the motion itself was concerned there was a failure 'particularly (to) set forth the reason why the defendant failed to appear' in such a form that it could be considered as pointing out that the defendant 'was prevented by mistake, accident or other reasonable cause from appearing' to make the defense.

The statute is remedial, but it cannot be so construed as to authorize relief merely because a defendant in fact fails to obtain substitute counsel upon notice of a withdrawal of appearance by the original counsel of record. As already pointed out, the defendant was promptly notified of the withdrawal, and it was almost two months before a default was entered. Still the...