Clover Farms, Inc. v. Kielwasser , 134 Conn. 622 ( 1948 )

In each of these cases the Court of Common Pleas rendered a summary judgment for the plaintiff on December 17, 1947; on December 30, 1947, the defendant filed an appeal; and on January 5, 1948, the trial court, on motion of the plaintiff, opened the judgment. The ground of the motion to erase is that there is now no final judgment in effect from which an appeal would lie. The defendant does not question that the motion to erase is the proper procedure to present the matter, nor does he contend that it should not be granted. His claim is that the erasure of the case from the docket should be conditioned upon the payment to him of the costs and expenses incurred by him in taking the appeal. As in the case of the Superior Court, there is but one term of the Court of Common Pleas held annually in each county beginning in September. General Statutes, Sup. 1941, 761f. The trial court had authority to open the judgment when it did, and the fact that an appeal had been filed did not prevent such action. Thompson v. Towle, 98 Conn. 738, 741,120 A. 503. Whether it should do so or not rested in its discretion. Kaiser v. Second National Bank of New Haven, 123 Conn. 248, 255, 193 A. 761. It might, if justice required, have conditioned the granting of the motion upon the payment to the defendant of costs and expenses properly incurred in taking the appeal before the motion to open was made. Because in such a situation the trial court is familiar with or can ascertain the facts relevant to the justice of imposing such a condition, it is the proper tribunal to pass on the matter. As the term of court still continues, it is not too late for it in this case to revoke its order and make a new order upon such a condition, if the circumstances justify it.

The motion to erase is granted.