179 Conn. 246 | Conn. | 1979
This appeal involves a foreclosure of a mortgage and the refusal of the court to grant a motion to open the judgment.
The defendant owners subsequently transferred their equity interest to Luxury Property, Inc. On April 4, 1978, Luxury Property, Inc. was made a party defendant, and on April 17,1978, the judgment was opened and the law day extended to commence September 28, 1978.
On June 30, 1978, the defendant filed a motion to open the judgment
At the outset, we observe that we need not decide whether an appeal lies from the denial of a motion to open a judgment of strict foreclosure. See Sebastiano v. Corde, 171 Conn. 324, 370 A.2d 946 (1976).
It is also clear from the record that the defendant Luxury Products, Inc. was in effect asking the trial court to set aside the entire foreclosure proceedings ab initio, proceedings over which the court retained jurisdiction over a three and a half year period and during which it has heard and ruled upon many complex evidentiary and legal issues. To allow the defendant now to raise a defense of a lack of corporate capacity which was admittedly available to the defendant or to its predecessors from the inception of this action,
We therefore conclude that the trial court did not abuse its discretion in denying the motion.
There is no error.
In this opinion the other judges concurred.
See § 52-109 of the General Statutes which provides as follows: “When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff.” See also Practice Book, 1978, § 101.
Section 49-15 of the General Statutes provides that a judgment of strict foreclosure may, at the court’s discretion, be opened and modified at any time before the title becomes vested in any encumbrancer. This procedure is commonly used, as it was in this case, to extend the law day. See, e.g., Sebastiano v. Corde, 171 Conn. 324, 370 A.2d 946 (1976).
“[General Statutes] See. 47-6a. Massachusetts business trust AUTHORIZED TO PURCHASE, HOLD OR CONVEY INTERESTS IN LAND; piling trust agreement. A trust with, transferable shares organized under the laws of the commonwealth of Massachusetts, commonly known as a Massachusetts business trust, may purchase, hold or transmit real estate, make mortgages thereon, and acquire and convey any interest therein, in the name of such trust in the same manner as a corporation organized under the laws of this state, provided a copy of the declaration of such trust, duly certified by the secretary of the commonwealth of Massachusetts, shall first be filed in the office of the secretary of the state of Connecticut.”
“[General Statutes] Sec. 33-412. rights and liabilities op corporation TRANSACTING BUSINESS WITHOUT AUTHORITY, (a) No foreign corporation transacting business in this state in violation of section 33-396 shall be permitted to maintain any action, suit or proceeding in any court of this state unless such corporation has obtained a certificate of authority. Nor shall any action, suit or proceeding be maintained in any court in this state by any successor or assignee of such corporation on any right, claim or demand, arising out of the transaction of business by such corporation in this state, until a certificate of authority has been obtained by such corporation or by a corporation which has acquired all or substantially all of its assets. . . .”
The defendant here was in effeet asking the trial eourt to grant it a new trial. It did not, however, comply with the requirements of § 52-270 of the General Statutes which authorizes the granting of a new trial under certain circumstances. The defendant did not even