Pantlin & Chananie Development Corp. v. Hartford Cement & Building Supply Co.

492 A.2d 159, 196 Conn. 233, 1985 Conn. LEXIS 756
CourtSupreme Court of Connecticut
DecidedMay 14, 1985
Docket12248
StatusPublished
Cited by63 cases

This text of 492 A.2d 159 (Pantlin & Chananie Development Corp. v. Hartford Cement & Building Supply Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pantlin & Chananie Development Corp. v. Hartford Cement & Building Supply Co., 492 A.2d 159, 196 Conn. 233, 1985 Conn. LEXIS 756 (Colo. 1985).

Opinion

Dannehy, J.

The primary issue raised by this appeal is whether it was an abuse of discretion for the trial court, Curran, J., to refuse to open and set aside a [234]*234default judgment discharging the defendant’s mechanic’s lien on the real property of the plaintiff.

This is a second appeal by the defendant involving the same parties and the same subject matter. See Pantlin & Chananie Development Corporation v. Hartford Cement & Building Supply Co., 188 Conn. 253, 449 A.2d 162 (1982). The detailed statement in that opinion includes all of the material facts upon which the issues relevant to this appeal rest. Reference is therefore made to it, without reprinting in this connection. On the last appeal it was decided that the trial judge, Melville, J., should have considered the merits of the defendant’s motion to open and set aside the default judgment; and the case was remanded to the trial court for further proceedings with regard to that motion. Id., 259.

At the mandated hearing in the Superior Court on February 1,1983, before Curran, J., the case was submitted on the transcript and exhibits of the proceedings before Melville, J. After hearing arguments of counsel, the trial court denied the defendant’s motion to open and set aside the judgment of November 13, 1979, Melville, J., discharging the defendant’s mechanic’s lien.1 The defendant appealed.

Our consideration of the propriety of an order denying a motion to set aside a judgment rendered upon default must be grounded upon General Statutes § 52-212 and certain rules which have been long recognized. The statute provides that any judgment rendered upon default may be set aside within four months upon the complaint or written motion of any person preju[235]*235diced thereby, showing reasonable cause, or that a good defense in whole or in part existed at the time of rendition of such judgment and that the defendant was prevented by mistake, accident or other reasonable cause from appearing to make the same. Practice Book § 377 contains similar language. It is thus clear that to obtain relief from a judgment rendered after a default, two things must concur. “There must be a showing that (1) a good defense, the nature of which must be set forth, existed at the time judgment was rendered, and (2) the party seeking to set aside the judgment was prevented "from making that defense because of mistake, accident or other reasonable cause. General Statutes § 52-212; Practice Book § 377.” (Citations omitted.) Eastern Elevator Co. v. Scalzi, 193 Conn. 128, 131, 474 A.2d 456 (1984). In the case of Eastern Elevator Co. v. Scalzi, we reiterated that in granting or refusing an application to open a judgment, the trial court is required to exercise a sound judicial discretion and its decision will be set aside only for an abuse of such discretion. Id., 131-32. We noted in Automotive Twins, Inc. v. Klein, 138 Conn. 28, 34, 82 A.2d 146 (1951), that the denial of a motion to set aside a default judgment should not be held to be an abuse of discretion in any case in which it appears that a defendant has not been prevented from appearing by mistake, accident or other reasonable cause. Of course, negligence is no ground for vacating a judgment, and we have held consistently that the denial of a motion to open a default judgment should not be held an abuse of discretion where the failure to assert a defense was the result of negligence. Eastern Elevator Co. v. Scalzi, supra, 132.

The first contention raised by the defendant is that the trial court’s refusal to set aside the default judgment was an abuse of discretion because the trial court lacked personal jurisdiction over the defendant as a [236]*236result of defective service of the notice of hearing on the plaintiffs application for discharge of the mechanic’s lien and the unreasonably brief period of time between notice and hearing. The defendant’s claims under this contention may be grouped in the following manner: (a) that the defendant was improperly served; (b) that the service by a sheriff of the notice of hearing on the application for discharge of the lien was invalid; and (c) that the notice received was inadequate.

The record discloses that on November 6,1979, the plaintiff filed an application seeking an order for discharge and/or reduction of the defendant’s mechanic’s lien on real estate of the plaintiff and/or an order allowing the substitution of a bond in lieu of the lien. On that same day a writ issued to the sheriff of Fairfield County for service. The deputy sheriff’s return of service shows that a copy of the application with the order for a hearing thereon on November 13, 1979, was left with and in the hands of Charles (Chuck) B. Ruchin, the defendant’s credit manager, at the defendant’s usual place of business at 45 Granby Street in Hartford on November 8, 1979. The claim made in support of the motion is that lawful service on a proper party had not been made in accordance with General Statutes § 52-57 (c) which permits service upon “any person who is at the time of service in charge of the office of the corporation . . . .”2

[237]*237Nicholas J. Bredice, the deputy sheriff who made the service, testified. He stated that after he entered the defendant’s office he identified himself and stated he was there to serve papers. Upon his inquiry as to whom he should give them, a clerk referred him to a Mr. Ruchin. When he found Ruchin, he identified himself and announced why he was there. Ruchin accepted the papers and gave the officer a business card which identified Ruchin as the credit manager. Ruchin never indicated that he was unauthorized to accept service. The defendant did not present any evidence to contradict the sheriff’s testimony. The president of the corporation testified that he and a Mr. McNally were the only officers and directors of the corporation and that neither man was in the office at the time of service. He made no attempt to identify who was in charge of the office at that time.

It was for the trial court to weigh the evidence and determine the credibility of the witnesses. This court cannot and will not weigh the evidence contained in the record before us. Edgewood Construction Co. v. West Haven Redevelopment Agency, 170 Conn. 271, 272, 365 A.2d 819 (1976). If there is sufficient evidence in the record in support of the decision of the trial court such decision must be affirmed. We cannot say that the trial court erred in its determination that service upon the defendant’s credit manager was proper.

The defendant next claims that the sheriff, who was from Fairfield County, had no authority to make service of process outside of his precincts upon the defendant in Hartford. General Statutes § 52-56 provides in pertinent part that “[i]f any officer has commenced the service of any civil process within his precinct, he may . . . serve such process upon, any defendant therein named without his precinct . . .

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Cite This Page — Counsel Stack

Bluebook (online)
492 A.2d 159, 196 Conn. 233, 1985 Conn. LEXIS 756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pantlin-chananie-development-corp-v-hartford-cement-building-supply-conn-1985.