195 Conn. 218 | Conn. | 1985
This is an appeal by the named defendant (hereinafter the defendant) from a judgment for the plaintiff in an action to foreclose a mortgage of premises at 711 East Main Street in Torrington. The defendant contends, inter alia, that the trial court erred in allowing interest, attorneys’ fees, payment for insurance, and fees for an appraisal and title search to be made a part of the sum awarded to the plaintiff in the judgment which ordered a foreclosure by sale.
A statement of facts and the reasons for our decisions have been set forth in full detail in Tucker I and Tucker II and we will only briefly restate them here. This litigation had its provenance in January, 1976, when the plaintiff instituted an action to foreclose a mortgage given by the defendant to the plaintiff on a certain piece of land owned by the defendant in Torrington. A receiver of rents was appointed. The action went to judgment, and on December 2,1977, the trial court ordered the sale of the premises at public auction. The defendant appealed to this court. On July 24, 1979, we concluded that no error had been committed by the trial court and, as the day set for sale had passed by reason of the appeal, remanded the case to it for the setting of a new date for a public sale of the mort
Ignoring our order that stayed the force of the judgment and suspended its execution, on September 5, 1979, the trial court granted the plaintiffs motion of July 27, 1979, and modified the judgment to provide for a public sale to be held on October 13, 1979. The defendant appealed from that judgment. We reviewed all of the claims raised by the defendant. None had merit. We found error with regard to the modification of judgment only because the defendant was deprived of the full and unhampered right of appellate review in accordance with the applicable rules of practice or statutes. The case was remanded on June 24,1980, “for the setting of a new date for a public sale of the mortgaged premises and any other necessary orders not inconsistent with this opinion.” Id., 298-99.
On May 26,1981, the plaintiff moved for the setting of a new date for a public sale of the mortgaged premises and other necessary orders. Both parties appeared and were heard on the motion. The court heard all the evidence which was offered, the defendant being always present. After ascertaining the sum total that was due on the mortgage and after extended inquiry into the
In carrying out the direction of a mandate, the Superior Court is limited to the specific direction of the mandate as interpreted in the light of the opinion. Mazzotta v. Bornstein, 105 Conn. 242, 243, 135 A. 38 (1926); see Gary Excavating Co. v. North Haven, 163 Conn. 428, 430, 311 A.2d 90 (1972). Our mandate to the Superior Court both in Tucker I and in Tucker II made it plain that the judgment of that court rendered on December 2,1977, was affirmed and that further proceedings should not be inconsistent with the views expressed in those opinions. This phraseology, while not controlling the details of the course to be pursued in the trial court, limits the proceedings insofar as they must conform to the remanding directions. We are satisfied that the judgment rendered by the trial court on remand conformed to the mandate of this court. That being so, the defendant cannot now raise questions which were or could have been answered on the former appeals.
The time fixed in the judgment for the public sale of the mortgaged premises passed pending appeal. Because of delays incident to the legal process of appeal, the judgment of the trial court became ineffective in an essential respect, and what is in effect a new judgment became necessary. Tilden v. Century Realty Co., 112 Conn. 439, 441-42, 152 A. 707 (1930). Our prior holdings that the plaintiff was entitled to interest and reimbursement for expenses, costs, attorneys’ fees and appraiser’s fee were binding upon the trial court. The effect of the rescripts in Tucker I and in Tucker II was to affirm the judgment of December 2, 1977, in every particular. It was therefore proper for the trial court in the new judgment to confirm the original one in all respects except as modification was made necessary by the delays incident to the appellate pro
The complaint accompanying the mesne process in this action was filed in the Superior Court on January 30,1976. On August 13,1976, upon motion of the plaintiff and over vigorous objections by the defendant, a receiver of rents was appointed. After judgment for a foreclosure by sale was rendered on July 23, 1981, and the defendant appealed, the receiver of rents filed a motion to terminate the receivership. The motion to terminate the receivership was denied but the receiver was substituted, effective upon the filing of a final account. The original receiver was allowed compensation and authorized to spend money for maintenance and to pay from the balance left in his hands taxes due to the city of Torrington in an amount not to exceed $10,000. The defendant claimed the court erred in making these orders and amended his appeal accordingly.
No appeal lies from the appointment of a receiver of rents in a foreclosure action.
In Young v. Polish Loan & Industrial Corporation, supra, we noted an exception to the general rule that the appointment of a receiver of rents is not an appeal-able final judgment. When an appointment is made after a judgment in the action has been rendered but while an appeal is pending from that judgment, a claim that the order was erroneous may be included in that appeal. Id., 715. The trial court’s order of January 12, 1982, denying the motion to terminate the receivership effectively continued the receivership, merely changing the identity of the rent receiver. The continuation of a rent receivership with a substituted rent receiver does not constitute an appealable order within the aforementioned exception. The defendant’s appeal from the trial court’s December 2,1977 order of foreclosure included a challenge to the 1976 appointment of the receiver of rents which was rejected in Tucker I. No further review of that appointment by this court is warranted.
Not only did the trial court have the authority to continue the receivership and to “modify any such order” as necessary, but also to “make any such order in the action as the exigencies of the case may require.” Gen
The defendant, a layman, tried his own case and prepared and argued his appeal in this court. On laboriously reviewing the matter, we have followed the liberal policy usual where a layman appears pro se, and have carefully considered his claims so far as they are fairly presented upon the record. Tucker I, supra, 476. It is obvious, however, that there is no merit to his claims and that no injustice has been done to him under the law.
This litigation has lasted for nine years. There is no longer any reason to prolong this case into the indefinite future by allowing the defendant a roving inquiry into irrelevant matter in the subsequent proceedings. Our mandate properly interpreted in the light of prior decisions of this court and the applicable statutes expressly directs the route to be followed.
There is no error. The case is remanded to the Superior Court for the setting of a new date for a public
In this opinion the other judges concurred.
Some of the errors assigned on appeal were not pursued in (argued upon) the defendant’s brief. We treat them as abandoned. Pastir v. Bielski, 174
This matter has been appealed by the defendant to this court five times. The first two appeals were dismissed, the next two appeals were heard on the merits with decisions rendered on July 24, 1979, and June 24, 1980, and the present appeal was filed on August 17, 1981.
The defendant’s petition for certiorari was denied on February 25, 1980. Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904, 100 S. Ct. 1079, 63 L. Ed. 2d 319 (1980) (Tucker I).
By contrast, the denial of an application for the appointment of a receiver is an appealable final judgment. Brey v. Brey, 1 Conn. App. 397, 398 n.4, 472 A.2d 354, cert. denied, 193 Conn. 806, 477 A.2d 659 (1984).
We appreciate the plaintiffs concern that this matter come to an expeditious conclusion. While we cannot predict the course of future events, we note that should the defendant take an appeal from the judgment rendered as a result of this remand, the trial court may, under the appropriate circumstances, terminate an automatic stay of execution. See Practice Book § 3065.