General Motors Acceptance Corp. v. Pumphrey

535 A.2d 396, 13 Conn. App. 223, 1988 Conn. App. LEXIS 3
Connecticut Appellate Court·Decided January 12, 1988·No. 5380·Published·Cited by 54 cases

Opinion

Dupont, C. J.

This is an appeal from the trial court’s denial of the third party defendant’s motion to open judgment. The basic issue to be decided is whether the failure to issue a summons to a party precluded the court from obtaining personal jurisdiction over that party, thereby voiding a judgment by default for failure to appear rendered more than four months prior to the motion to open the judgment.

The plaintiff, General Motors Acceptance Corporation (GMAC), brought an action against the defendants, Linda and Stephen Pumphrey, for failure to make payments pursuant to a retail installment contract for the purchase of an automobile. Payments apparently ceased after a collision involving the vehicle. The defendants claimed by way of special defense that the plaintiff had represented that it would obtain collision insurance for the automobile.

The defendants’ motion to implead Aetna Casualty and Surety Company (Aetna) was granted by the trial court.1 The defendants claimed that there was an insurance policy in force between GMAC and Aetna covering the automobile. The record indicates that Aetna was served with a copy of the third party complaint, the order granting the motion to implead, and a copy of the original writ of attachment and complaint against the third party plaintiffs. The order granting the motion [226] to implead contained a return date but Aetna was never served with a third party writ of summons.

GMAC’s motion for default against Aetna for failure to appear was granted by the trial court.2 No notice of the granting of the motion was sent to Aetna in accordance with Practice Book §§ 352 (b) and 121 (b) which require service of the defaulting party with a copy of the motion.3 Pursuant to a stipulation of the appearing parties, a trial referee found that judgment should enter for the plaintiff against the defendants in the amount of $12,812.27, together with $123.20 in costs, and in favor of the third party plaintiffs, Linda and Stephen Pumphrey, against the third party defendant, Aetna, in the amount of $12,935.47, with costs of $31.80. Judgment was rendered by the trial court on December 10, 1985, in accordance with the referee’s report. Aetna did not receive notice of the judgment.4 The third party plaintiffs’ application for bank execution proceedings against Aetna dated April 24, 1986, was subsequently granted which resulted in satisfaction of the judgment.

On June 23, 1986, Aetna filed an appearance and a motion to open the judgment. In its motion, it alleged that the judgment of the trial court concerning Aetna [227] was void for lack of in personam jurisdiction because Aetna was never served with a third party writ of summons. The trial court denied the motion to open judgment. The trial court stated in its memorandum of decision that Aetna had not demonstrated reasonable cause for its failure to file the motion to open within four months following judgment, as required by General Statutes § 52-212 (a) and Practice Book § 326.5

Service of process on a party in accordance with the statutory requirements is a prerequisite to a court’s exercise of in personam jurisdiction over that party. White-Bowman Plumbing & Heating, Inc. v. Biafore, 182 Conn. 14, 16-17, 437 A.2d 833 (1980); Clover v. Urban, 108 Conn. 13, 17, 142 A. 389 (1928). “In the absence of a voluntary appearance, the issuance and service of process or notice is indispensable to the jurisdiction of a court to determine the adverse claims of parties to the litigation. Until notice is given to the defendant of the action or proceedings against him, and he is thereby given opportunity to appear and be heard, the court has no jurisdiction to proceed to judgment against him even though it may have jurisdiction of the [228] subject matter. One who is not served with process does not have the status of a party to the proceeding. The parties and their case must be brought before the court, and this is accomplished by the use of process.” 62 Am. Jur. 2d, Process § 3. A court has no jurisdiction over persons who have not been made parties to the action before it. See Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987); Graham v. Zimmerman, 181 Conn. 367, 373, 435 A.2d 970 (1980).

The third party defendant in this case did not receive service of process as required by General Statutes § 52-45a.6 A writ must contain a direction to a proper officer for service and a command to summon the defendant to appear in court. Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 340, 170 A.2d 732 (1961). If there is no writ of summons attached to a complaint, the court lacks jurisdiction. See Basilicato v. Department of Public Utilities Control, 197 Conn. 320, 497 A.2d 48 (1985). The trial court never gained the in personam jurisdiction over the third party defendant which is necessary to impose a binding judgment because the third party defendant never received a writ of summons. A court is without power to render a judgment if it lacks jurisdiction of the parties or of the subject matter. In such cases, the judgment is void, has no authority, and may be impeached. Broaca v. Broaca, 181 Conn. 463, 468, 435 A.2d 1016 (1980). A trial court’s authority to open such judgments does not arise from General Statutes § 52-212 (a) or Practice Book § 326 but from its inherent power to open a judgment rendered without jurisdiction. Id., 466-67.

[229] “No principle is more universal than that the judgment of a court without jurisdiction is a nullity. . . . Such a judgment, whenever and wherever declared upon as a source of right, may always be challenged.” Samson v. Bergin, 138 Conn. 306, 312, 84 A.2d 273 (1951). “If a court has never acquired jurisdiction over a defendant or the subject matter . . . any judgment ultimately entered is void and subject to vacation or collateral attack.” Broaca v. Broaca, supra, 468.

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General Motors Acceptance Corp. v. Pumphrey, 535 A.2d 396, 13 Conn. App. 223, 1988 Conn. App. LEXIS 3 (Colo. Ct. App. 1988).

535 A.2d 396 (General Motors Acceptance Corp. v. Pumphrey) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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