363 A.2d 755 | Conn. Super. Ct. | 1976
The defendants have appealed from a summary judgment of the trial court declaring a judgment, which they had previously obtained for damages against the plaintiffs in another action, to be a nullity and enjoining its enforcement. The parties agreed that there were no material issues of fact and joined in submitting the file in the earlier suit as presenting the necessary factual basis for action by the trial court on their respective motions for summary judgment.
By writ, summons and complaint dated October 4, 1972, the defendants Ronald J. and Gayle C. Fazzalaro brought an action against the plaintiffs Doris M. and Stuart H. Robertson in the Circuit Court for the sixth circuit, the writ being returnable to the second Tuesday of November, 1972. The complaint sought damages for the false representations allegedly made by the Robertsons in the sale of a house in Woodbridge to the Fazzalaros. The writ identified the Robertsons as residents of Hawaii, and personal service was made on them *571 by a deputy sheriff in that state on October 17, 1972. No appearance having been filed by the Robertsons in the action, the Fazzalaros filed a motion for default for failure to appear on December 18, 1972, with an affidavit of the deputy sheriff attached stating that neither of the Robertsons was in the military service. That motion was granted on February 1, 1973, and on April 23, 1973, after a motion for a hearing in damages had been filed, a judgment of $2,328.45 plus costs was rendered against the Robertsons.
On November 25, 1974, the Robertsons brought the present action to enjoin enforcement of the judgment and to declare it a nullity. The only ground alleged for that relief is the failure of the court to have granted a statutory continuance for them as nonresidents in accordance with General Statutes
It is clear that the present action constitutes a direct rather than a collateral attack on the judgment involved. Miller v. McNamara,
The claim that the judgment is void must be sustained if the record discloses a lack of jurisdiction at the time of its being rendered. O'Leary v. Waterbury Title Co.,
"There is no principle of law better settled, than that every act of a court of competent jurisdiction shall be presumed to have been rightly done, till the contrary appears: and this rule applies as well to every judgment or decree, rendered in the various stages of their proceedings from the initiation to their completion, as to their adjudication that the plaintiff has a right of action." Voorhees v. Bank of the United States, 35 U.S. (10 Pet.) 449, 472. "The presumption extends to every step in the proceedings and embraces every fact or matter going to the authority of the court to render the judgment assailed. . . . If a statute required a certain affidavit to be filed or a certain fact to be found prior to the rendition of judgment, it will be presumed, in the absence of any statement or showing upon the subject, that such affidavit was filed or such fact found." 1 Freeman, Judgments (5th Ed.) 388. Jurisdictional facts are conclusively presumed in domestic courts of general jurisdiction, even when not found by the court, unless the record itself shows the contrary. Lamps on Lumber Co. v. Hoer,
In Morey v. Hoyt,
We conclude that the trial court erred in granting summary judgment for the plaintiffs.
There is error, the judgment is set aside and the case is remanded to the Court of Common Pleas with direction to render judgment for the defendants.
In this opinion SPEZIALE and SPONZO, Js., concurred.