Summary
dismissing as moot mortgagor's appeal from denial of motion to open judgment in foreclosure by sale because title to property had passed
Summary of this case from Citibank, N.A. v. LindlandOpinion
(4500)
Argued October 17, 1986 —
Decision released January 13, 1987
Action to foreclose a mortgage on certain property owned by the defendant's decedent, brought to the Superior Court in the judicial district of Middlesex and tried to the court, Spada, J.; judgment ordering foreclosure by sale; subsequently, the Supreme Court dismissed the defendant's appeal from the order of the court, Spallone, J., approving the sale of the subject property; thereafter, the court, Byrne, J. denied the defendant's motion to open the judgment approving the sale and the defendant appealed to this court. No error.
Kevin E. Booth, with whom, on the brief, was Michael McKenna, for the appellant (defendant).
Richard J. Beatty, with whom, on the brief, was Ann Marie Johnson, for the appellee (plaintiff).
In this appeal, the defendant claims that the trial court erred in finding that it lacked jurisdiction to open a judgment rendered approximately two and one-half years earlier. The judgment had approved the committee sale of the defendant's property at public auction to the plaintiff made pursuant to an earlier judgment of foreclosure. The defendant had appealed to the Supreme Court from the approval of the committee sale and allowance of fees and expenses. That appeal was dismissed by the Supreme Court, suo motu, for failure of the defendant to pursue the appeal with proper diligence. Practice Book 3109 (now 4055).
The defendant, John P. Howes, also known as John Peele Howes, was sued in three capacities: (1) as executor of the will of Lillian H. Howes; (2) as trustee under Article Third of said will; and (3) individually. As used in this opinion, the term defendant refers to John P. Howes in all three capacities.
Thereafter, the defendant filed a motion to open the trial court judgment previously appealed. The motion was denied for lack of jurisdiction; see General Statutes 52-212a; Practice Book 326; and the defendant filed the present appeal.
we note that the defendant is obliquely attempting to revive an appeal that has succumbed by his failure to pursue the appeal with proper diligence. See Connecticut Savings Bank v. Heghmann, 193 Conn. 157, 159-60, 474 A.2d 790, cert. denied, 469 U.S. 883, 105 S.Ct. 252, 83 L.Ed.2d 189 (1984).
After this appeal was taken, the plaintiff filed a motion with the trial court seeking to terminate the automatic stay pending appeal. See Practice Book 3065 (now 4046). The trial court granted this motion, finding that the appeal was brought solely for the purpose of delay. The defendant sought review of the trial court's termination of the stay. See Practice Book 3067 (now 4049). This court granted review of the trial court's action, but upheld its termination of the stay of proceedings. With the stay of execution now lifted, the committee transferred title of the foreclosed property to the plaintiff.
"When a sale has been made pursuant to a judgment therefor and ratified by the court, a conveyance of the property sold shall be executed by the person appointed to make the sale, which conveyance shall vest in the purchaser the same estate that would have vested in the mortgagee or lienholder if the mortgage or lien had been foreclosed by strict foreclosure, and to this extent such conveyance shall be valid against all parties to the cause and their privies . . . ." General Statutes 49-26. Since absolute title has passed to the plaintiff, the remedy which the defendant seeks by appeal is no longer available. There is no practical relief which this court could grant to the defendant. The appeal is, therefore, moot. See Connecticut Foundry Co. v. Intl. Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979); cf. Schroeter v. Salvati, 6 Conn. App. 622, 506 A.2d 1083 (1986).