Opinion
Under the statute, the surety on a bond given to release an attachment is liable only to the extent of the actual value of the interest of the principal in the property released. In a suit against the surety on a bond given to release an attachment, the trial court found that a mortgage upon the personal property attached was void because the sum loaned was stated to be greater than the amount actually loaned, and that therefore the principal's interest in the property was its full value rather than its value less the incumbrance of the mortgage. The special defense of the surety on this point was in general terms, to the effect that the interest of the principal on the bond in the property attached was less than the amount of the judgment obtained. The chattel mortgage was not mentioned. Under these circumstances the plaintiff was under no duty to raise the issue of the validity of the mortgage in the pleadings. The burden of proving the actual value of the principal's interest in the attached property was on the defendant surety, as provided by statute. When she introduced the chattel mortgage and its validity was attacked during the trial, her burden of proof included proof of the validity of the mortgage. The conclusion of the court that the face of the mortgage was greater than the amount actually loaned could not be disturbed.
Argued November 13, 1951
Decided December 24, 1951
Action to recover against the defendant as surety on a statutory bond given to effect the release of an attachment, brought to the Court of Common Pleas in Fairfield County and tried to the court, FitzGerald, J.; judgment for the plaintiff and appeal by the defendant. No error.
The appellee filed a plea in abatement which was overruled.
INGLIS, J. The plea in abatement rests upon the claim that the appeal was not filed within the time prescribed by the rules. Judgment in the case was entered in the Court of Common Pleas in Fairfield County on July 24, 1950. On July 31 the defendant filed her notice of intention to appeal. The next step she took was on September 9, when she filed a motion to reopen the judgment for the purpose of taking additional and newly discovered evidence and of reargument. The term of the court at which the judgment was entered had expired prior to the date the motion to reopen was filed and for that reason the court denied the motion on October 6. The appeal was filed on October 10. Inasmuch as the judgment was entered during the month of July, the filing of the notice of intention to appeal operated to extend the time for the taking of the appeal itself for a period of two weeks commencing September 1, 1950. Practice Book 368. Accordingly, the motion to reopen the judgment was filed within that time. It is well settled that, if a motion to reopen a judgment to reargue a case or to introduce new evidence is filed before the expiration of the time allowed for an appeal, it has the effect of extending the time for filing the appeal until two weeks after the decision on the motion. This is true even though the motion may be denied. DeLucia v. Home Owners' Loan Corporation, 130 Conn. 467, 470, 35 A.2d 868; Palmer v. Reeves, 120 Conn. 405, 407, note, 182 A. 138; Peerless Soda Fountain Service Co. v. Savin, 117 Conn. 1, 2, note, 166 A. 386; Maltbie, Conn. App. Proc. 67. To so operate, however, the motion must be filed before the time in which the appeal may be filed has run out. Daland's Application, 81 Conn. 249, 252, 70 A. 449. The reasoning supporting the authorities cited is that a prevailing party is entitled to know by the expiration of the time for taking an appeal whether the judgment in his favor is final or is still open to attack, that the filing of a motion to reopen gives him that information, and that it would be futile to compel the losing party to perfect this appeal while a motion to reopen is pending. The plaintiff contends that the filing of the motion in this case did not extend the time for appeal because the motion itself was a nullity for the reason that, the term having expired, the court had no power to grant it. It can hardly be said that the motion was a nullity. There is, of course, a distinction between the possible effect of a motion to reopen filed late but still within such time that the court may grant it and one filed after the expiration of the term of court in which the judgment was rendered. Such a distinction, however, is not very substantial. Even in the case of a motion filed after the expiration of the term, it is within the power of the court to grant it if the other party has, by his conduct, waived any objection on that ground. Morici v. Jarvie, 137 Conn. 97, 104, 75 A.2d 47, and cases cited. Accordingly, the motion to reopen filed in this case was one upon which the defendant was entitled to he heard. When it was filed, the plaintiff had notice that the judgment was still subject to an appeal. The filing of the motion, therefore, had the effect of extending the time for taking the appeal, and the plea in abatement is not well grounded. The plea in abatement is overruled. In this opinion the other judges concurred.
Morris Robinson, with whom, on the brief, were Howard W. Benedict and Alan H. Nevas, for the appellant (defendant).
John Keogh, Jr., with whom, on the brief, was Stephen Tate, for the appellee (plaintiff).
The plaintiff had judgment against the defendant surety on a statutory bond furnished to effect the release of an attachment of personal property. Under the statute, the surety on such a bond is liable only to the extent of the actual value of the interest of the principal in the property released. General Statutes 8047. The defendant surety claimed that the value of the interest of the defendant in the original suit in the property attached at that time was less than the amount of the bond and that the finding of the trial court to the contrary was erroneous.
The following facts are undisputed: On June 30, 1941, the plaintiff brought suit against Leonard Jobrack. The officer was directed to attach his goods in the amount of $1500. He did attach various articles of personal property belonging to Jobrack and took them into his possession. On July 5, 1941, the attachment was released by the substitution of the bond in suit. The value of the property attached was $1031. Jobrack was principal on the bond and the defendant was his surety. Jobrack subsequently died and his executrix was substituted as defendant in the original action. On October 24, 1949, judgment was rendered that the plaintiff recover from Jobrack's executrix $1011.27. The execution was returned unsatisfied and no part of the judgment has been paid. At the time of the attachment, the only incumbrance on the property attached was a chattel mortgage for $1200 from Jobrack to Hyman Jaffe, the husband of the defendant in the case at bar.
The dispute centers around a finding that Jaffe loaned only $900 to Jobrack in consideration of the $1200 mortgage. The trial court concluded that the mortgage was void because the sum of money loaned was stated to be greater than the amount actually loaned; General Statutes 7279; and that therefore Jobrack's interest in the property attached was its full value, not its value less the incumbrance of the mortgage.
The defendant claims that the plaintiff cannot question the validity of the chattel mortgage because the issue was not raised in the pleadings. The special defense on the point was in general terms, to the effect that the interest of Jobrack in the property attached was less than the amount of the judgment obtained against his estate. The chattel mortgage was not mentioned. The parties were at issue on the plaintiff's denial of the special defense. As far as appears in the record, its first knowledge of the defendant's specific claim was obtained when the mortgage was offered in evidence. Under these circumstances, the plaintiff was under no duty to raise the issue in the pleadings.
The defendant admits that the burden of proving the actual value of Jobrack's interest in the attached property is on her. General Statutes 7900. She claims, however, that when she introduced the chattel mortgage, admittedly duly executed and recorded, the burden of proving its invalidity rested on the plaintiff. This is not so. In none of the cases cited by her is the burden of proof governed by a statutory provision, as it is in the case at bar. Section 7900 is specific. The final clause reads: "the burden of proving the actual value of such [the principal's] interest shall be upon the defendant." Plainer language could hardly be used. The matter is thus summarized in Birdsall v. Wheeler, 58 Conn. 429, 436, 20 A. 607: "We think that . . . the value of the interest of the defendant in the original suit in the property would, in the absence of all evidence to the contrary, be intended as that of a full owner, that is, the actual value of the property; that when such value is shown, the defendant, in the action upon the bond, may reduce it, by proving the true extent and the qualified or partial nature of such interest. . . ." In Evans v. Rappaport, 109 Conn. 362, 146 A. 611, the defendant claimed that the existence of certain liens reduced the equity of the obligor in the attached property. It was said (p. 364): "The burden was upon the defendant here to prove that there were existing incumbrances upon this property in amount sufficient to reduce the equity of the owner to a sum less than the amount of the judgment obtained against him. This the defendant failed to do." See also Curley v. Marzullo, 127 Conn. 354, 359, 17 A.2d 10; Safford v. McNeil, 102 Conn. 684, 689, 129 A. 721; Mallory v. Hartman, 86 Conn. 615, 619, 86 A. 567; 7 C.J.S. 530.
The value of the property attached was admitted. The defendant attempted to extinguish that value by proof that it was subject to a mortgage for more than its worth. The burden of proof was on her to prove this fact. The situation is unusual in that the plaintiff offered no evidence on the point but depended on cross-examination of the defendant's witnesses to throw doubt on the bona fides of the transaction. It would serve no useful purpose to detail the evidence. Suffice it to say that after studying the record we cannot hold that the conclusion of the trial court that the face of the mortgage was greater than the amount actually loaned is without support. The disputed finding is one of fact and must remain. The finding thus supports the conclusion reached. Since this is decisive of the case, the other assignments of error are not discussed.