12353 | Conn. | Jul 24, 1984
The defendant has filed a writ of error with this court, claiming that the trial court erred in refusing to grant her motion to transfer the case from the Small Claims docket to the regular docket of the Superior Court.
The record
I
Before addressing the propriety of the trial court’s ruling, we must first decide whether this court has jurisdiction to entertain the writ of error. Our jurisdiction is arguably impaired because (1) the defendant may not be sufficiently aggrieved by a default judgment to be entitled to bring a writ of error; and (2) the defendant may be precluded from bringing the writ of error by the language of General Statutes § 51-197a, as amended by Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3 forbidding appeals from Small Claims judgments. We conclude that we have jurisdiction.
General Statutes § 52-272
There can be no question that the defendant has a personal and legal interest in the subject matter of this default judgment, i.e., whether she is liable for services rendered by the plaintiff. Nor can it be successfully maintained that her legal interest has not been “injuriously affected.” A default judgment establishes the defendant’s liability, and like any other judgment, may be executed according to statute. See General Statutes § 52-347 et seq. It makes no difference for purposes of aggrievement that the judgment was rendered
Nor does the fact that the writ lies from the Small Claims division of the Superior Court, where no statutory right of appeal exists; General Statutes § 51-197a as amended by Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3; preclude a more limited appellate review by writ of error. See General Statutes § 52-272. Certainly, the General Assembly could conclude that limited appellate review was all that was necessary for Small Claims cases. Construing our statutes as one consistent body of law, as we must; Vartuli v. Sotire, 192 Conn. 353" court="Conn." date_filed="1984-02-28" href="https://app.midpage.ai/document/vartuli-v-sotire-7838870?utm_source=webapp" opinion_id="7838870">192 Conn. 353, 472 A.2d 336 (1984); we conclude that General Statutes § 51-197a as amended by Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3 does not preclude us from entertaining a writ of error pursuant to General Statutes § 52-272 from the Small Claims division of the Superior Court and that we therefore have jurisdiction.
II
The defendant’s claim of error concerns the trial court’s refusal to grant her motion to transfer the case to the regular docket. That motion was filed on July
Practice Book § 572
The defendant claims that she satisfied one of the grounds for transfer set forth in Practice Book § 572, by filing an affidavit that a good defense exists and specifying its nature. We agree and conclude that the court should, therefore, have granted her motion.
We hold, therefore, that where a defendant satisfies one of the conditions for a transfer set out in Practice Book § 572, his motion to transfer must be granted. In the present case the defendant alleged by affidavit that a good defense existed and requested a transfer. We find no deficiency in that affidavit which would render it insufficient to satisfy the requirement of Practice Book § 572 (2) (b) that the affidavit accompanying a motion to transfer state “that a good defense exists to the claim and [set] forth with specificity the nature of the defense . . . .’’Under these circumstances, the trial court had no discretion to deny the request.
There is error, the judgment is set aside and the case is remanded to the trial court with direction to grant the defendant’s motion to transfer.
In this opinion the other judges concurred.
The only errors reviewable by a writ of error are those that appear on the face of the record. See State v. Ross, 189 Conn. 42" court="Conn." date_filed="1983-01-11" href="https://app.midpage.ai/document/state-v-ross-2367259?utm_source=webapp" opinion_id="2367259">189 Conn. 42, 51, 454 A.2d 266 (1983).
At the time the motion was filed, Practice Book § 572 provided as follows:
“A case duly entered on the small claims docket of a geographical area court location shall be transferred to the regular docket of the superior court if the following conditions are met:
'“(1) The defendant, or the plaintiff if the defendant has filed a counterclaim, shall file a motion to transfer the case to the regular docket. This motion must be filed on or before the answer date.
“(2) The motion to transfer must be accompanied by (a) a counterclaim in an amount greater than the jurisdiction of the small claims court; or (b) an affidavit stating that a good defense exists to the claim and setting forth with specificity the nature of the defense, or stating that the case has been properly claimed for trial by jury.
“(3) The moving party shall comply with such terms as are fixed by the court, which shall at least provide for not less than the amount of an entry fee of a case in the superior court.
“Unless the case is properly claimed for trial by jury, in which case it shall be transferred to the regular docket of the clerk’s office of the superior court serving the county or judicial district within which the geographical area is located, the case shall remain in the clerk’s office serving the*45 geographical area and be placed upon the regular docket. A case may be consolidated with a case pending in any other clerk’s office of the superior court.
“In the event of transfer of a case to another court location, under the provisions of the statutes and rules of court, the original docket sheet or card, together with all papers and documents incorporated therein by reference, shall be transmitted to the clerk of such court and copies thereof shall be retained by the clerk of the court from which the case was transferred.”
The record before us does not disclose the reasons for the trial court’s denial of the motion.
The judgment appealed from was not the order of default but the “judgment upon default . . . which is entered after the default and after a hearing in damages.” Automotive Twins v. Klein, 138 Conn. 28" court="Conn." date_filed="1951-06-05" href="https://app.midpage.ai/document/automotive-twins-inc-v-klein-2205424?utm_source=webapp" opinion_id="2205424">138 Conn. 28, 33, 82 A.2d 146 (1951). It was, therefore, a final judgment. Id.
“[General Statutes] See. 52-272. WRITS OF ERROR IN MATTERS OF LAW ONLY, return DAYS. Writs of error for errors in matters of law only may be brought from the judgments of the superior court to the supreme court
Practice Book § 3090 provides: “An aggrieved party may file a writ of error in the supreme court only to review the final judgment of a judge or court in a case where no unqualified statutory right of appeal has been provided. A writ of error may be used only to review errors apparent on the face of the record.”
Prior to our decision in Reilly v. State, 119 Conn. 217" court="Conn." date_filed="1934-11-20" href="https://app.midpage.ai/document/reilly-v-state-3321306?utm_source=webapp" opinion_id="3321306">119 Conn. 217, 175 A. 582 (1934), this court had never decided whether a writ of error would lie from a default judgment. Former Chief Justice Swift had opined, however, that the writ would lie from a default judgment: “Error will lie in all cases where there is error in law, apparent on the record, and in certain cases where there is error in fact, not apparent on the record. Whenever the pleadings terminate in a demurrer, so that the question appears upon the record, or where the court render an improper judgment on a verdict, motion in arrest, on default or on nihil dicit, a writ of error will lie. So where an issue in fact is tried by the court or jury, though no motion in arrest is made, yet if the declaration or any part of the pleadings is defective, or when judgment is rendered on default, if the declaration is bad, advantage can be taken by writ of error . ...” 1 Swift, Digest p. 789.
Practice Book § 3090 provides in part that “[a]n aggrieved party may file a writ of error in the supreme court only to review the final judgment of a judge or court in a case where no unqualified statutory right of appeal has been provided.” (Emphasis added.)
In Local 1303 & Local 1378 v. FOIC, 191 Conn. 173, 463 A.2d 613 (1983), we held that our standard for establishing aggrievement for the purposes of an administrative appeal applied with equal force to an appeal filed pursuant to General Statutes § 52-263, the statute that then provided this court with general appellate jurisdiction. We believe that that standard is “compatible with traditional notions for appellate practice”; Id., 175; concerning writs of error as well.
“Affidavit
Cheryl L. Burns of the Town of Canton, County of Hartford and State of Connecticut, being first duly sworn, deposes and says:
1. That she is the defendant in the above-entitled matter.
2. That a good defense exists to the claim of the plaintiff in the above-entitled action.
3. That the said defense is that the work referred to in the complaint was performed under an oral agreement with no agreed price, thus implying the price of the fair market value of said services. The price charged was not reasonable.
4. That as a further defense, the defendant received insufficient Right of Recission under Connecticut General Statutes Section 42-135a.
5. The defendant wishes to preserve her right of appeal.
Isl Cheryl L. Burns”
See footnote 2, supra.
“[General Statutes] Sec. 51-15. rules of procedure in certain civil actions, small claims. In accordance with the provisions of section 51-14, the judges of the superior court shall make such orders and rules as they deem necessary or advisable concerning the commencement of process and procedure in flowage petitions, paternity proceedings, replevin, summary process, habeas corpus, mandamus, prohibition, ne exeat, quo warranto, forcible entry and detainer, peaceable entry and forcible detainer, for paying rewards and for the hearing and determination of small claims, including suitable forms of procedure in such cases, exclusive of fees. The orders and rules for the hearing and determination of small claims shall include provisions for the institution of small claims actions by attorneys-at-law on suitable forms to be served by a proper officer or indifferent person upon the defendant in the same manner as complaints are served in civil actions