Varanelli v. Luddy.

• Decision Date: 20 April 1943
• Citation: 130 Conn. 74,32 A.2d 61
• Court: Connecticut Supreme Court
• Parties: VARANELLI v. LUDDY.

130 Conn. 74

32 A.2d 61

VARANELLI

v.LUDDY.

Supreme Court of Errors of Connecticut.

April 20, 1943.

COPYRIGHT MATERIAL OMITTED.

Appeal from Superior Court, New Haven County; Daly, Judge.

Action by Michael C. Varanelli against Mary E. Sullivan Luddy for a judgment declaring the title to certain land to be in the plaintiff, and for other relief, wherein defendant filed a counterclaim. Judgment for plaintiff, and defendant appeals.

Error and case remanded.

DICKENSON and BROWN, JJ., dissenting.

U. G. Church, of Waterbury, for appellant.

Michael V. Blansfield, of Waterbury, for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

MALTBIE, Chief Justice.

This is an action in equity praying that a certificate of foreclosure filed by the defendant based upon an alleged judgment of foreclosure be declared void and that title to the real estate upon which it was filed be declared in the plaintiff, the plaintiff's contention being that the judgment in question was one for damages only. Judgment was rendered for the plaintiff and the defendant has appealed.

With such corrections of the finding as the defendant is entitled to and taking judicial notice of the record in the original action, the essential facts are as follows: On February 25, 1938, the defendant obtained a judgment against the plaintiff to recover the sum of $84.29. On March 14, 1938, she caused to be recorded a judgment lien on the plaintiff's real estate. On July 12, 1938, she filed a complaint against the plaintiff in the City Court of Waterbury setting up the judgment and the lien and claiming damages and a foreclosure of the lien. On the back of the complaint, under the indorsement of the title of the case, the following appears: ‘Oct. 6, 1939. Judgment for plaintiff to recover $92.18 and costs. Law day December 29, 1939. Gaffney, Judge.’ On the same date the clerk of the court sent to the parties notice ‘That judgment was rendered today * * * for the plaintiff by default to recover $92.18 and his costs. Law Day December 29, 1939.’ The judgment file of the case filed and recorded in the City Court recites that ‘The Court, having heard the plaintiff, finds that he has sustained damages, as alleged in his complaint, to the amount of $92.18 and costs. Whereupon it is adjudged that the plaintiff recover of the defendant $92.18 damages, and his costs, taxed at $14.57.’ This was signed by the clerk.

The amount of this judgment was not paid. On June 28, 1940, the attorney for the defendant, Mrs. Luddy, caused to be filed in the land records a certificate of foreclosure dated January 19, 1940, stating that the land of the plaintiff, Varanelli, had been foreclosed, that the date for redemption had passed and that title had become absolute in Mrs. Luddy. The land in question comprised four acres in the residential section of Waterbury reasonably worth $1,500. On August 16, 1940, Varanelli filed a written motion in the City Court that the judgment ‘be reopened’ and the law day extended; on September 13, 1940, this motion was denied on the ground that it came too late under the provisions of § 5084 of the General Statutes forbidding the opening of a judgment of foreclosure after title has become absolute in any incumbrancer. On November 30, 1940, Varanelli tendered to Mrs. Luddy $125, in payment of the judgment of October 6, 1939, interest and costs, which she refused to accept. After Varanelli had commenced the instant action, Mrs. Luddy filed in the City Court an application dated March 3, 1941, in which she prayed that the judgment file dated October 6, 1939, be amended and corrected to show a judgment of foreclosure. On May 21, 1941, this application was denied ‘without prejudice’, the court holding that the error was not clerical but one in substance and could not be corrected at a term subsequent to that at which it was rendered. No appeal therefrom was taken. On January 5, 1942, the defendant made an application in this action for an order in the nature of a writ of mandamus praying that the judge and clerk of the City Court be ordered to show cause why an order should not be made directing them to correct the judgment file. The plaintiff made a motion to erase the application. On February, 10, 1942, the application was denied. On March 25, 1942, the defendant filed a motion to amend her answer by adding a counterclaim that the judgment file be corrected to conform to the judgment alleged by the defendant to have actually been rendered. On April 17, 1942, this motion was denied.

On this state of facts the trial court concluded that the defendant had not obtained a judgment of foreclosure against the plaintiff, but a judgment for money damages only, and that the defendant, not having appealed from the denial of her motion to correct the judgment file in the City Court, was bound by its terms. In a preliminary memorandum of decision the court directed the plaintiff to pay the defendant $125 in satisfaction of the City Court judgment. This tender was made August 4, 1942, but the defendant refused to accept it. On September 10, 1942, the court rendered judgment for the plaintiff declaring title to the land in question to be in the plaintiff and the certificate of foreclosure to be invalid.

The claims of error made by the defendant may be summarized as follows: The real judgment was contained in the memorandum of the City Court indorsed on the complaint; this was recognized by the parties and the court in the proceedings to open the judgment and extend the law day, which constituted a waiver on the part of the plaintiff and a confirmation of the judgment of foreclosure on the part of the court; while the defendant had moved to amend the judgment file in the City Court to correspond with the memorandum and this motion had been denied, it had been denied ‘without prejudice’ and, therefore, was not an appealable judgment; for this reason she was entitled in the Superior Court to a correction of the judgment in mandamus proceedings, and, this remedy having been denied her, she had the right to file her counterclaim to obtain the same redress.

The judgment file is the evidence of the judgment, State v. Lindsay, 109 Conn. 239, 243, 146 A. 290; In re Application of Title & Guaranty Co., 109 Conn. 45, 50, 145 A. 151; Brown v. Cray, 88 Conn. 141, 146, 89 A. 1123; Corbett v. Matz, 72 Conn. 610, 613, 45 A. 494, 48 L.R.A. 217; and is conclusive of its contents unless or until corrected, Holtz v. Riddell, 101 Conn. 416, 421, 126 A. 333; Sisk v. Meagher, 82 Conn. 376, 377, 73 A. 785. If there is a judicial error in the record, it may be corrected upon motion and hearing at the term the judgment was rendered, but not thereafter. Goldreyer v. Cronan, 76 Conn. 113, 115, 55 A. 594; Ferguson v. Sabo, 115 Conn. 619, 621, 162 A. 844. If clerical, the error may be corrected at any time. The indorsement on the complaint gave to the clerk all the information necessary to draw a complete foreclosure judgment in the usual form, and that was all that was necessary. People v. Petit, 266 Ill. 628, 632, 634, 107 N.E. 830. That the judgment of the City Court was one of foreclosure is apparent not only from the court's indorsement but by its acceptance as such by the court and parties on the plaintiff's motion to open the judgment and advance the law day. Any irregularity in its recording was waived at that time by the plaintiff. See D'Andrea v. Rende, 123 Conn. 377, 380, 195 A. 741. It was the duty of the City Court to correct the judgment file to correspond with the judgment, and in a proper case the Superior Court could require it to do so. See State ex rel. Bonoff v. Evarts, 115 Conn. 98, 160 A. 294, 161 A. 668. Where, as in the instant case, the act required to be performed is ministerial, the authority of the Superior Court in a proper case to issue a mandamus directing that it be done cannot be questioned. Seymour v. Ely, 37 Conn. 103, 105; Alcorn v. Fellows, 102 Conn. 22, 33, 127 A. 911; 34 Am.Jur. 980, § 211.

In her answer the defendant alleged the indorsement on the back of the complaint which we have quoted, that the judgment file did not accord with it and that the indorsement was the actual judgment rendered. So long as the judgment file stood uncorrected, it was, as we have stated, conclusive evidence of the judgment rendered, and the defendant could not have availed herself of the facts alleged in the answer. She was within her rights in making application for an order in the present action in the nature of a mandamus directing that the judgment filed be corrected, so that she could have the benefit of the facts alleged in her answer. Wardell v. Killingly, 96 Conn. 718, 115 A. 539; and see State ex rel. Rowland v. Smith, 91 Conn. 110, 114, 99 A. 555.

The motion to erase the application states as its grounds that the officials of the City Court were not parties to the action and that the motion in the City Court to correct the judgment file had been denied and no appeal taken. As far as concerns the first ground, the application sought an order addressed to the officials of the City Court to show cause why the writ should not be granted and the issuance of that order would have made them parties to the cause.

The denial of the motion, except...