54 Conn. App. 459 | Conn. App. Ct. | 1999
Opinion
The sole issue in this appeal is whether the trial court improperly denied the plaintiffs’ motion to open a judgment of dismissal, rendered pursuant to Practice Book § 14-3,
The plaintiffs
The plaintiffs claim on appeal that the four month period in which to file a motion to open the judgment of dismissal commenced when notice of the judgment was issued, namely, June 27, 1997, and not June 20, 1997, the date the judgment was rendered. Therefore, the plaintiffs claim that because their motion to open was filed on October 27, 1997, four months from the date notice issued on the judgment, the trial court improperly denied the motion as untimely. We agree with the plaintiffs.
“Our courts have the inherent authority to open, correct or modify judgments, but this authority is restricted by statute and the rules of practice.” Ziruk v. Bedard, 45 Conn. App. 137, 138, 695 A.2d 4, cert. denied, 243 Conn. 905, 701 A.2d 339 (1997). For a trial court to open a civil judgment, a motion to open or set aside must be filed “within four months succeeding the date on which notice was sent.” Practice Book § 17-4 (a). “When a motion to open is timely filed, our review is limited to whether the court has acted unreasonably or has abused its discretion. . . . When the motion to open is not timely and the time limitation has not been waived, however, the trial court lacks jurisdiction to open the judgment.” (Citations omitted.) Ziruk v. Bedard, supra, 139. “Whether a party has been given notice is a question of fact . . . and where a trial court finds that notice
Here, the trial court denied the plaintiffs’ motion to open the judgment of dismissal, stating: “Denied. Four month period has elapsed: 6/20 -10/27.” The trial court, in effect, determined that it lacked jurisdiction to entertain the plaintiffs’ motion because the motion was not timely filed. Although the judgment of dismissal was rendered on June 20,1997, the date the trial court relied on as commencing the four month period, notice of that judgment was not sent until June 27, 1997. Therefore, the issue before us is whether the dispositive date for determining whether the plaintiffs filed their motion to open within the four month period is the date that notice of the judgment issued or the date that the judgment was rendered.
Practice Book § 17-4, formerly § 326, was amended in 1997
The plaintiffs’ motion, having been filed within four months succeeding the date on which notice was sent, was, therefore, timely filed. The trial court improperly relied on the date the judgment was rendered in determining whether the plaintiffs’ motion was filed
The judgment is reversed and the case is remanded for consideration of the merits of the plaintiffs’ motion to open the judgment of dismissal.
Practice Book § 14-3 provides in relevant part: “(a) If a party shall fail to prosecute an action with reasonable diligence, the judicial authority may, after hearing, on motion by any party to the action pursuant to Section 11-1, or on its own motion, render a judgment dismissing the action with costs. . . .”
The plaintiffs are the Federal Insurance Company and its insured, Kathleen M. Wallace.
We do not consider the plaintiffs’ claim relating to the denial of their motion to reargue in view of our disposition of this case.
The amendment became effective October 1, 1997. The plaintiffs filed their motion to open the judgment of dismissal on October 27, 1997.