Opinion
(12072) (12073)
The named defendant in each case appealed from the judgment rendered in each case following a single trial ordering foreclosure by sale of certain liens in favor of the plaintiff in both cases, the town of Farmington. Held that, under the circumstances here, there was nothing before this court for consideration.
Argued January 17, 1985
Decision released March 12, 1985
Action, in each case, to foreclose real property tax liens on certain parcels of land located in the town of Farmington, brought to the Superior Court in the judicial district of Hartford-New Britain at Hartford, where the court, Brennan, J., after granting the plaintiff's motion for default in each case, rendered judgment of foreclosure by sale for the plaintiff and the named defendants appealed to this court. No error.
Peter M. Moran, for the appellant (named defendant in the first case).
Geraldine D. Conlon, pro se, the appellant (named defendant in the second case).
James J. Tancredi, with whom were Palmer S. McGee, and, on the brief, Neil E. Salowitz, for the appellee (plaintiff in both cases).
These are two cases, argued together. One is an action for the foreclosure by sale of certain tax liens in favor of the town of Farmington, the other an action for the foreclosure by sale of certain tax liens and liens for an assessment of benefits from the construction of a sewer line in favor of the town of Farmington. They are identical in form and were tried together. In the Superior Court, Brennan, J., denied the defendants' motions to dismiss and refused to hear other motions filed by the defendants. Judgment for foreclosure by sale was rendered in each case in favor of the plaintiff. The cases are here on two appeals, one by each named defendant.
The facts necessary to be stated are few. A default for failure to disclose a defense was entered against the defendants. With the case in this posture, the trial court denied the motions to dismiss and refused hearings on the other motions. Subsequently, judgment for foreclosure by sale was rendered in each case in favor of the plaintiff.
The questions included in the named defendants' statements of issues relate directly or indirectly to their motions for dismissal and the motions with requests for rulings. Since there was no objection to the denial of the motion to dismiss and the refusal to rule on the other motions, the plaintiff insists that there would appear to be nothing from which to appeal. We agree.
The record shows that the defendants were defaulted for failure to disclose a defense; Practice Book 236; and that the motions for dismissal and rulings failed to meet the requirements of the rules of pleading. And it further appears that when the plaintiff pointed out that the motions were untimely and made out of order; Practice Book 112, 114; that none of the motions had been properly served; Practice Book 121; and that the entry of the default judgment for failure to disclose a defense precluded the defendants from making any defense as to liability in the actions; Practice Book 364; Kawasaki Kisen Kaisha, Ltd. v. Indomar, Ltd., 173 Conn. 269, 272, 377 A.2d 316 (1977); the defendants beat a hasty retreat, pausing only long enough to say they had no objections to the matter going forward. The trial court did not, because it could not by reason of the defendants' action, rule on the claims of law presented by the motions. Because the questions raised in the motions are the only issues stated in the reasons for appeal, there is nothing before us for consideration.
We are importuned to declare that 49-27 of the General Statutes is unconstitutional. It is a request that must be ignored. It goes without saying that the statute has been before us repeatedly, and its validity continually upheld. See, e.g., City National Bank v. Traffic Engineering Associates, Inc., 166 Conn. 195, 348 A.2d 637 (1974); Gault v. Bacon, 142 Conn. 200, 113 A.2d 145 (1955). It would be folly if we were driven on a barren record, without even the semblance of valid argument, to the conclusion claimed by the named defendants, after the statute has stood for so long and so many titles have passed pursuant to the authority the statute conveys.
"[General Statutes] Sec. 49-27. DISPOSAL OF PROCEEDS OF SALE. The proceeds of each such sale shall be brought into court, there to be applied if the sale is ratified, in accordance with the provisions of a supplemental judgment then to be rendered in the cause, specifying the parties who are entitled to the same and the amount to which each is entitled. If any part of the debt or obligation secured by the mortgage or lien foreclosed or by any subsequent mortgage or lien was not payable at the date of the judgment of foreclosure, it shall nevertheless be paid as far as may be out of the proceeds of the sale as if due and payable, with rebate of interest where the debt was payable without interest, provided, if the plaintiff is the purchaser at any such sale, he shall be required to bring into court only so much of the proceeds as exceed the amount due upon his judgment debt, interest and costs."