3 Conn. Cir. Ct. 86 | Conn. App. Ct. | 1964
The plaintiff has appealed from the denial of its motion for an order for weekly payments in enforcement of its judgment against the defendants. There is no finding; the facts and the conclusion of the court, however, appear on the face of the record. By writ dated January 14, 1963, the plaintiff brought this suit on a promissory note against the defendants and caused a certain real estate of the defendants in the town of Colchester to be attached. Thereafter, on June 12, 1963, a judgment by default for $924.80 and costs was rendered for the plaintiff. On May 15,1964, the plaintiff moved for an order for weekly payments. This motion was denied on May 28, 1964, on the ground that § 52-361 of the General Statutes does not authorize an order for weekly payments in a case where there is a real estate attachment. The plaintiff claims error in the court’s construction of this statute.
At the outset we raise of our own motion, as we have the right to do (Felletter v. Thompson, 133 Conn. 277, 280), the question whether the denial appealed from is a final judgment or final action of the Circuit Court so as to give us jurisdiction of the appeal. General Statutes § 51-265; State v. Wilson, 22 Conn. Sup. 345, 346, 1 Conn. Cir. Ct. 19, 20. Such an order is a prerequisite to obtaining an execution against the wages of a defendant. The right of the plaintiff to the enforcement of its judgment is determined with finality by the refusal to make such an order. This order is specifically made part of the final judgment or supplemental judgment. General Statutes § 52-361. We conclude that we have jurisdiction of this appeal.
If the statute is to be construed as forbidding a wage payment order in a case in which an attachment has been made, the plaintiff may enforce a judgment in his favor by filing a judgment lien which relates back to the date of the attachment and then foreclosing it, if there is sufficient equity to justify a foreclosure, or he may bring suit on the judgment and obtain an order for payments in this second action. Conversely, a plaintiff could bring suit without attachment, obtain his judgment and order for payments, and then file a judgment lien against the real estate which he did not attach. This might jeopardize the plaintiff’s position if someone else obtained a lien after the commencement of the plaintiff’s action and before the filing of the judgment lien. In both instances, the end result is a judg
There is error, the order denying the motion is set aside and the case is remanded to be proceeded with according to law.
In this opinion Dearington and Levine, Js., concurred.