Tuite v. Tuite

• Decision Date: 26 February 1963
• Citation: 150 Conn. 345,189 A.2d 394
• Court: Connecticut Supreme Court
• Parties: Frank J. TUITE v. Roselle E. TUITE. Supreme Court of Errors of Connecticut

Page 394

189 A.2d 394

150 Conn. 345

Frank J. TUITE v. Roselle E. TUITE.

Supreme Court of Errors of Connecticut.

Feb. 26, 1963.

Henry T. Istas, New Haven, for appellant (defendant).

D. Stephen Gaffney, New Britain, with whom were Bernard D. Gaffney, New Britain, and, on the brief, Leo V. Gaffney, New Britain, for appellee (plaintiff).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

ALCORN, Associate Justice.

The defendant has appealed from a judgment rendered by the Superior Court in favor of the plaintiff in an action of peaceable entry and forcible detainer brought under § 52-462 of the General Statutes. No finding was requested or made. Our inquiry, therefore, must be confined to error which appears on the face of the record. Practice Book § 385; Maltbie, Conn.App.Proc., p. 155. The memorandum of decision cannot take the place of a finding. Gitlitz v. Davis, 146 Conn. 280, 281, 150 A.2d 213; Maltbie, op. cit., p. 188. We therefore examine the pleadings for such facts as they disclose.

It appears that the plaintiff exhibited his complaint, dated April 10, 1962, to a judge of the Superior Court, as provided by § 52-462 of the General Statutes, alleging that the defendant had, without his consent and against his will, unlawfully entered into and upon certain described premises belonging to the plaintiff and thereafter had unlawfully and unjustly remained in possession, entered and reentered to obtain possession, held and detained the premises with force and strong hand, and deforced and kept the plaintiff out of possession. The judge to whom the complaint was exhibited cited the defendant to appear before him on April 17, 1962, and, on that date, certified the plaintiff's application and the proceedings thereon to the court. On the same date, the defendant failing to appear, a default judgment in favor of the plaintiff was rendered. On April 27, 1962, pursuant to the defendant's motion, the default judgment was opened. On May 4, 1962, the defendant filed a plea in abatement and to the jurisdiction, grounded, in substance, on the pendency of another action in the Superior Court in Hartford County, identified only as No. 126795. The plea was overruled, and the defendant filed an answer, pleading no information as to the plaintiff's allegation of title and denying the other allegations of the complaint. The parties were heard on the issues thus framed, and, on May 16, 1962 the judgment appealed from was rendered, in which the issues were found for the plaintiff and it was ordered that he be restored to and reseized of the premises and that a writ of restitution issue forthwith.

The defendant makes seven assignments of error, the treatment of which, in the brief, is such that it appears most expeditious to consider them as though none have been abandoned. The first assignment is that the court erred in refusing to vacate the default judgment; the second is that the trier erred in hearing the case as a judge when court was in session; and the third is that the trier failed to certify the proceedings to the court on April 17 prior to rendering the default judgment. The first and third claims of error are not borne out by the record. The second claim of error finds no support in the record or in the applicable statutes. General Statutes §§ 52-462, 52-463. The fourth assignment is that the trier failed and refused to disqualify himself at the trial which followed the opening of the default. This assignment is ineffective...