Wolf v. Fuller, CV

• Decision Date: 11 October 1972
• Docket Number: No. CV,CV
• Citation: Wolf v. Fuller, 298 A.2d 244, 30 Conn.Supp. 527 (Conn. C.P. App. Div. 1972)
• Court: Court of Common Pleas of Connecticut. Connecticut Court of Common Pleas, Appellate Division
• Parties: Martin WOLF, Trustee v. Samuel FULLER et al. 8-16-50280.

Page 244

298 A.2d 244

30 Conn.Supp. 527

Martin WOLF, Trustee v.Samuel FULLER et al.

No. CV 8-16-50280.

Court of Common Pleas of Connecticut, Appellate Division.

Argued Sept. 5, 1972.

Decided Oct. 11, 1972.

Stephen P. Hershey, Norwalk, for appellants(defendants).

Richard R. Gerken, Norwalk, for appellee(plaintiff).

O'BRIEN, Judge.

This summary process action is before us for the third time.Originally this court vacated the dismissal by the trial court of the instant appeal by the defendants, holding that such action was beyond the jurisdiction of the trial court.We later stayed the ex parte issuance of an execution by the trial court and ordered that the judge who heard the case conduct a hearing on the plaintiff's motion for execution and that a finding be made thereafter to enable this court to review the propriety of the action taken.

This action to recover possession of the premises in question was based upon the alleged failure to pay rent due to the date of the complaint in the amount of $710, representing approximately six months' rent.Since the date of the judgment (October 21, 1971), no rent has been paid by the tenants although they have offered to pay.They have failed to post the bond required by § 52-542, as amended byPublic Acts 1971, No. 316.Apparently a separate action has been instituted by the landlord seeking the collection of the rent moneys from the defendant tenant.

The bond filed by the defendant husband in this action is an undertaking by him himself to 'represent and guarantee payment for all rents that have accrued from the commencement of the action to the date of judgment and for all rents that may accrue during the pendency of this appeal, or which may be due at the time of its final disposal or the reasonable value for such use and occupancy that had so accrued or may accrue.'

The defendants do not deny that they have failed to file the bond as required by Public Acts 1971, No. 316, but contend that such a requirement is an unconstitutional limitation on their right to a meaningful appeal.They cite Lindsey v. Normet, 405 U.S. 56, 77, 92 S.Ct. 862, 876, 31 L.Ed.2d 36, for the proposition that the Connecticut bond requirement is unconstitutional.The Supreme Court of the United States, in holding the Oregon double bond provision unconstitutional, stated: 'While a State may properly take steps to insure that an appellant post adequate security before an appeal to preserve the property at issue, to guard a damage award already made, or to insure a landlord against loss of rent if the tenant remains in possession, the double-bond requirement here (Oregon) does not effectuate these purposes since it is unrelated to actual rent accrued or to specific damage sustained by the landlord.'

'An appeal in this state is a statutory privilege accorded only if the conditions fixed by the statutes and rules of court for taking and prosecuting it are complied with.'Kennedy v. Walker, 135 Conn. 262, 266, 63 A.2d 589, 591.'Under its general authority to regulate appellate procedure the legislature has the power to require the giving of a bond or undertaking as a condition precedent to the right to appeal or sue out a writ of error, unless such power is clearly excluded by the constitution.Such statutes do not violate constitutional provision granting the right of appeal, as they do not restrict or deny the right, but merely regulate the manner of exercising it. . . .'4A C.J.S. Appeal and Error § 502(b), 208.

It must be remembered that the original purpose of the summary process action was to enable landlords to recover possession of the premises after termination of the lease without the delay, loss and expense experienced under the common-law remedy of eviction.Housing Authority v. Alprovis, 19 Conn.Sup. 37, 39, 109 A.2d 884;Dreifuss v. World Art Group, Inc., 6 Conn.Cir. 309, 312, 272 A.2d 144.A requirement that the tenant pay or provide for the payment of rent during the continuance of the action is hardly irrational or oppressive.Lindsey v. Normet, supra, 405 U.S. 76, 92 S.Ct. 862.

The undertaking by the defendant husband alone and without surety appears to be of little value to the protection of the rights of the landlord, in view of the fact that it represents merely a continuation of the original leasing agreement upon the part of the tenant-an agreement which he had already broken, as evidenced by the failure to pay the rent for approximately six months prior to the institution of the summary process proceedings-and especially in view of the finding of the court that '(d)efendant husband had been out of work on and off from September of 1970 until the date of trial and stated he stopped paying the rent because he wasn't getting much money from unemployment and 'if you don't have it you don't pay it."

The Appellate Division of the Circuit Court held in West Haven Housing Authority v. Simmons, 5 Conn.Cir. 282, 288, 250 A.2d 527, that the defendants there failed to substantiate their claim that the statute in question (§ 52-542) violated constitutional precepts.The Supreme Court of this state refused certification for review.West Haven Housing Authority v. Simmons, 156 Conn. 662, 243 A.2d 83.An appeal to the United States Supreme Court was dismissed.Simmons v. West Haven Housing Authority, 399 U.S. 510, 90 S.Ct. 1960, 26 L.Ed.2d 764.

It is the further contention of the defendants that Public Acts 1971, No. 316, denies them the equal protection of the laws so far as it sets up two classes of prospective appellants.The act provides, in part, as follows: 'When any appeal is taken by the defendant occupying an apartment in a tenement house as defined in chapter 352 in an action of summary process, he shall, within the period allowed for taking such appeal, give a bond with surety to the adverse party to guarantee payment for all rents that have accrued from the commencement of the action to the date of judgment and for all rents that may accrue during the pendency of such appeal, or which may be due at the time of its final disposal or, where no lease had existed, for the reasonable value for such use and occupancy that had so accrued or may so accrue; and in any other appeal the court on its own motion or on motion of the parties, may fix a sufficient bond with surety to the adverse party in such amount as it may determine. . . .'

The distinction...