Opinion
Argued April 2, 1975
Decision released April 22, 1975
Action of interpleader to determine the rights of the defendants to funds in the possession of the plaintiff, brought to the Superior Court in New Haven County and referred to Hon. Raymond J. Devlin, state referee, who, exercising the powers of the Superior Court, rendered judgment ordering distribution of funds among the defendants; the named defendant moved to open and set aside the judgment, which motion the defendant Hartford Accident and Indemnity Company moved to erase; motion to erase granted, from which the named defendant appealed to this court. No error.
William F. Gallagher, with whom, on the brief, was John T. Cummiskey, Jr., for the appellant (named defendant).
Howard F. Zoarski, for the appellee (defendant Hartford Accident and Indemnity Company).
Joseph B. Morse appeared for the plaintiff.
The plaintiff sought a judgment of interpleader to determine claims to a fund held by it for the defendant Harbor Construction Corporation, hereinafter Harbor, arising out of a judgment rendered against the plaintiff in favor of Harbor. See Harbor Construction Corporation v. D. V. Frione Co., 158 Conn. 14, 225 A.2d 823.
On December 5, 1973, the referee, acting as the court, rendered judgment of interpleader, ordering the plaintiff to pay the claims of some of the defendants, including those of Harbor and Hartford Accident and Indemnity Company, hereinafter Hartford A. I., the parties to this appeal.
By motion filed April 9, 1974, Harbor moved to open and set aside the judgment of December 5, 1973. A motion to erase, filed on April 11, 1974, by Hartford A. I. was granted by the court on the ground that it lacked jurisdiction because the motion to open and set aside the judgment was filed after the expiration of the term in which the judgment had been rendered. Harbor has appealed to this court from the granting of the motion to erase.
The decisions of this court in Poneleit v. Dudas, 141 Conn. 413, 106 A.2d 479, and Cichy v. Kostyk, 143 Conn. 688, 125 A.2d 483, are dispositive of the merits of this appeal. As the Poneleit case reiterated (p. 416), "`It is well settled that, unless proceedings looking to modification of a judgment are started before the expiration of the term of court at which it was entered, a court has no power to modify it in matters of substance, as distinguished from the correction of clerical errors, after the expiration of the term, except by consent or waiver of the parties or in proceedings for a new trial,'" and added, "As the term of court during which the judgment was rendered had expired at the time the motion to open the judgment was filed, the trial court did not have the power to grant it." See also Beard v. Beard, 168 Conn. 53, 54, 357 A.2d 465. The Cichy case (p. 695) makes clear that there is no merit to Harbor's contention that since the motion to open — filed after the expiration of the statutory "session" — was filed before the expiration of the statutory "term," the court erred in granting the motion to erase.