10 Conn. App. 669 | Conn. App. Ct. | 1987
The plaintiffs appeal from the trial court’s rendering of a supplemental judgment in their action to quiet title. They claim that the trial court erred by supplanting its original judgment quieting title to land in the plaintiffs with a supplemental judgment redescribing the land by metes and bounds beyond the evidence presented at the trial. They charge that the new description was merely a representation by counsel and, as such, cannot be incorporated as an alleged factual clarification of the trial court’s original judgment. They also assert that it was error to accept the written description without presentation of an expert witness to authenticate or establish its origin or foundation, thereby depriving the plaintiffs of an opportunity to challenge the correctness of the description. The plaintiffs’ final claim is that the content of the proposed description was hearsay.
The following relevant facts are either not in dispute or are apparent on the face of the record. This action was brought by the plaintiffs against the defendant, Nibo Films, Ltd. (Nibo), to quiet title to a parcel of land.
After a trial to the court, it was found that “[ejxcept as to the house lot itself plaintiffs have not sustained their burden of proof in regard to any area beyond the paved driveway as it is shown on Exhibit D by a preponderance of the evidence.” (Emphasis added.)
While this action to quiet title was pending, Carrols brought a foreclosure action against Nibo in which the plaintiffs were also named as defendants. The foreclosure action was consolidated with the action to quiet title. After judgment was rendered for the plaintiffs in their title action and a stipulated judgment of strict foreclosure was rendered for Carrols, the latter moved to reargue the judgment for the plaintiffs claiming that
A judgment file was prepared in this action pursuant to Practice Book § 337, and signed by the first assistant clerk. This judgment file describes the premises in issue as that set forth in the plaintiffs’ complaint; see footnote 1, supra; finds the allegations in the complaint true, and “adjudge[s] that the title to the property be and the same is hereby quieted and settled in the plaintiffs as against the defendants, and that none of the defendants have any estate, interest in or encumbrance on the property or any part thereof.”
It is apparent from the record that the judgment file is not in accordance with the court’s judgment as set forth in its memorandum of decision. The judgment file does not reflect the trial court’s finding that the plaintiffs had established a possessory interest only in the paved driveway, nor does it reflect the court’s refusal then to determine title to the remainder of the disputed parcel.
The plaintiffs’ first two claims of error substantially allege that the proffered description was merely a representation by counsel and as such could not form the basis for the court’s supplemental judgment.
The description contained in Schedule A of the motion for supplemental judgment was clearly not evidence
It is undoubtedly true that a proper map in evidence, drawn to scale and showing courses and distances is a reliable basis upon which a court may render judgment as to title of real estate. See Capone v. Sloan, 149 Conn. 538, 544, 182 A.2d 414 (1962) (no error in allowing jury to measure distances on a map drawn to scale). A metes and bounds description as used here, however, is quite different from a survey of courses and distances drawn on a surveyor’s or civil engineer’s map. See 1 R. Patton & C. Patton, Titles (2d Ed.) §§ 124 and 125 (illustrating the various methods of metes and bounds descriptions). Even if we accept as true Nibo’s characterization of the court’s action as an independent determination of the proffered Schedule A as an accurate description of the property comprising the driveway and title to which was quieted in the plaintiffs, such a determination was beyond the evidence in the case and as such, served to deprive the plaintiffs of an effective opportunity to test its accuracy by cross-examination upon a proper tender in evidence. See Moynahan v. State, 31 Conn. Sup. 296, 299-300, 329 A.2d 619 (1974) (ex parte affidavit attached to a complaint not probative evidence; lacks protection of cross-examination).
The defendants bore the burden of supporting their motion for supplemental judgment with proper evidence which had been introduced during the trial. Their presentation of an uncertified and unauthenticated description of the real estate at their posttrial motion
There is error, the supplemental judgment is set aside and the case is remanded with direction to reinstate the original judgment.
In this opinion the other judges concurred.
The plaintiffs’ complaint describes the land as follows: “Northerly: By land now or formerly of Anthony P. Walenlukonis, 450 feet; Easterly: Selden Street, 105 feet; Southerly: The defendant, 450 feet; [and] Westerly: The defendant, 35 feet and Robert L. Picard, 70 feet.”
“[General Statutes] Sec. 52-575. entry upon land to be made within fifteen years. No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues; and every person, not entering as aforesaid, and his heirs, shall be utterly disabled to make such entry afterwards; and no such entry shall be sufficient, unless an action is commenced thereupon and prosecuted to effect within one year next after such entry; but, if any person who has such right or title of entry into any lands or tenements is, at the time of the first descending or accruing of such right or title, a minor, non compos mentis or imprisoned, he and his heirs may, notwithstanding the expiration of such fifteen years, bring such action or make such entry at any time within five years next after full age, coming of sound mind or enlargement out of prison, or his heirs shall, within five years after his death, bring such action, or make such entry, and take benefit of the same; provided the limitation herein prescribed shall not begin to run against the right of entry of any owner of a remainder or reversionary interest in real estate, which is in the adverse possession of another, until the expiration of the particular estate preceding such remainder or reversionary estate.”
Although beyond our scope of review because there was no appeal taken from the court’s original judgment of January 9,1985, and this issue is not before us in the appeal by the defendant from the supplemental judgment of September 11,1985, it appears that the court relied upon a lesser standard of proof in finding title by adverse possession in the plaintiffs by “a preponderance of the evidence.” “ ‘Where title is claimed by adverse possession, the burden of proof is on the claimant. . . . Such a possession is not to be made out by inference, but by clear and positive proof.’ ” (Citations omitted.) Roche v. Fairfield, 186 Conn. 490, 498, 442 A.2d 911 (1982); Clark v. Drska, 1 Conn. App. 481, 484, 473 A.2d 325 (1984); see Schaffer v. Lindy, 8 Conn. App. 96, 104, 511 A.2d 1022 (1986).
These apparent deficiencies in the judgment file are not on review before this court on appeal. It should be noted, however, that “[a] judgment is in fact rendered whenever the trial judge officially announces his decision in open court, or out of court signifies to the clerk in his official capacity and for his official guidance — whether orally or by written memorandum— the sentence of the law pronounced by him in any cause. This pronouncement of the court it is incumbent upon the clerk to forthwith enter. The writing out of the judgment, in the form of a judgment-file to be recorded, is a matter of subsequent clerical action.” Bulkeley’s Appeal, 76 Conn. 454, 457-58, 57 A. 112 (1904); Bogaert v. Zoning Board of Appeals, 162 Conn.
“A clerical error is a mistake or omission in a judgment which is not the result of the judicial function. Such a claimed error does not challenge the court’s ability to reach the conclusion that it did reach, but involves the failure to preserve or correctly represent in the record the actual decision of the court. 46 Am. Jur. 2d, Judgments § 202.” Ravizza v. Waldie, 3 Conn. App. 491, 493, 490 A.2d 90 (1985).
See General Statutes § 7-31 for requirements pertaining to the filing of maps of surveys and plots on land records.
The plaintiffs initially filed an objection to Carrols’ motion claiming only that the motion was untimely. See General Statutes § 52-212a; Practice Book § 326. This claim was neither pressed before the trial court at argument on the motion nor raised on appeal.
A new judgment file reflecting the court’s supplemental judgment was never prepared by the clerk’s office. The absence of such a file, however, will not preclude our review where the trial court’s judgment clearly constitutes a final judgment from which an appeal may be taken. See Howarth v. Northcott, 152 Conn. 460, 462, 208 A.2d 540 (1965); Hiss v. Hiss, 135 Conn. 333, 338, 64 A.2d 173 (1949). We also note the absence of any objection to the lack of a supplemental judgment file.
The plaintiffs’ third claim of error that the description was hearsay was not presented to the trial court. Because we find the plaintiffs’ combined first and second issues dispositive of this appeal, we need not decide this question which was neither raised in nor ruled upon by the trial court. We likewise refuse to rule upon the plaintiffs’ claim raised for the first time in their reply brief, that the motion for supplemental judgment was not in accordance with General Statutes § 52-259c and Practice Book § 326, both of which provide that a filing fee shall be paid to the clerk of the court simultaneously with the filing of a motion to open, set aside or modify a civil judgment. See L. F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 45 n.8, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986).