This action was brought by the plaintiff, a corporation duly licensed to conduct a small loan business under the provisions of General Statutes, Chapter 213, as amended Cum. Sup. 1933, §§ 1080b to 1085b, seeking to recover a balance due on a joint and several note of the defendants, husband and wife, dated September 13th, 1933, in the original amount of $300.
The facts fоund by the court with such corrections as the defendants are entitled to are substantially as follows: On September 13th, 1933, the defendants executed their promissory note wherеby they jointly and severally promised to pay to the order of the plaintiff *192 the sum of $300 in twenty equal monthly instalments of $15 each with interest at the rate of 3% per month on the unpaid balance. The note contained a provision that if default should be made in any payment of principal or interest, the entire principal should immediately bеcome due and payable. At the same time, the defendants executed and delivered to the plaintiff a chattel mortgage. This was not recorded or used by the рlaintiff in any way before or during the trial of the case. This mortgage contained an agreement to pay “any expense which the lender has incurred or contraсted for in reclaiming said goods and chattels, including reasonable attorney’s fees and costs,” etc. The plaintiff also delivered to the defendants two statements оf loan wherein this chattel mortgage security was designated “C. M.” The defendants failed to pay the monthly instalments becoming due on January 13th and February 13th, 1934.
At the trial, the chattel mоrtgage was offered in evidence by the defendants for the limited purpose of showing “that the security was not properly stated in the book given to the borrower.” The сase was tried to the court. Upon the close of the evidence defendants, by their attorney, argued the facts and stated their claims of law. No referencе was made by them to the provision in the chattel mortgage concerning the cost of collection nor was that matter stated as a defense in the pleadings. Judgmеnt was entered on May 9th. Two days later the defendants filed a written motion to reopen the judgment “for the purpost of allowing argument on the question of law as to the effect of the presence in the chattel mortgage given as security for the loan sued on of a clause allowing the collection of attorney’s fees.” Thе motion to reopen was granted by the court and reargument had. In the course of reargument, counsel for plaintiff *193 objected that the question was not raised by the рleadings. Thereafter, the court affirmed the original judgment on the ground, as stated in its memorandum, that the matter raised by the motion to reargue should have been pleaded by way of special defense, and this course not having been taken the court could not consider it. On the following day, the defendants filed written motions to reopen thе case and for permission to file an amendment to the amended answer, setting up the defense that the taking of the chattel mortgage as security and the provisiоn therein that in the event the goods mortgaged were reclaimed, the plaintiff would be entitled to reasonable attorney’s fees, rendered the note void and unenforceable because contrary to the provisions of the small loans law as amended, Cum. Sup. 1933, § 1084b. These motions were denied and the trial court stated, in its memorandum, thаt it did not feel that the defendants were entitled at this stage to have the judgment again reopened after previously having had full opportunity to offer a proper amendment.
Numerous assignments of error are made, but it is necessary to discuss only the one relating to the action of the trial court in refusing to reopen the judgment and allow the defendants to file an amended answer setting forth the invalidity of the loan by reason of the chattel mortgage given to secure it, and the provision therein for thе payment of attorney’s fees. At the trial, no claim was made that the loan was void for this reason. The chattel mortgage was introduced for another purposе, but the trial court has found that it is undisputed that at the time this loan was made this chattel mortgage was given and the mortgage itself, containing the provision for attorney’s fees, was in evidence and before the court. Under our practice, illegality not apparent on the face of the pleadings
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must be specially pleaded. Practice Book, § 104;
Hendrick
v.
Lowe,
It follows that by reason of the failure of the defendants to specially plead this defense, judgment has resulted in favor of the wrong party. The judgment in this case was entered on May 9th and the motion to reopen and rеargue was promptly filed on May 11th in the same term. This motion was granted and the cause reargued. The trial court, on June 5th, having reaffirmed the original judgment, the defendants promptly, on the following day and at the same term of court at which the judgment was re-entered, filed their motion to reopen and file an amendment setting forth the invalidity of the сontract. It is a general rule of the law that all judgments are under the control of the court which pronounced them during the term at which they are rendered or enterеd of record, and they may then be set aside or modified by that court.
Bronson
v.
Shulter,
There is error;, the cause is remanded to the Court of Common Pleas with directions to reopen the case and allow the defendants to file the amendment to their answer and for further proceedings in accordance with law.
In this opinion the other judges concurred.