Harrison v. Harrison , 94 Conn. 280 ( 1920 )

This appeal is taken from the action of the court on July 3d 1919, whereby the judgment rendered in 1916 was in terms modified by the insertion of the words "annual and weekly," before the word "payments" in its last line. Such it was in form, and such in legal effect it must, of necessity, be regarded. The original judgment had long since passed beyond the reach of an appeal when this one was taken. So, also, had the denial on April 22d 1919, of the defendant's application. Any claims of harmful error, which our practice left open for the defendant to make when he took his appeal, was accordingly limited to such as related to the change in phraseology of the judgment-file made by the July order. It is, therefore, essential that the appellant, as the first step in the prosecution of his appeal, should show that the inserted words wrought a material change in the import of the judgment-file. If they did not, the defendant was not harmed and has no cause of complaint. It would appear that they were inserted for the purpose of giving greater certainty to the language of the judgment-file. But assuming that they accomplished that end, as they undoubtedly did, it by no means follows that the purport and effect of the amended language differ from that of the unamended as it would be construed. In fact, increase of certainty implies the absence of material change rather than otherwise, and evidently, judging by the court's memorandum, it looked upon the modification it made as not altering the meaning and effect of the judgment.

What is the fact of the situation before us? The inserted words remove from the language of the order as originally framed any possibility of ambiguity that might be attributed to it, and makes it absolutely certain that the "said payments" referred to include all those ordered to be made, whether annual or weekly. Unamended the order was doubtless less definite and precise than it is in its present shape, but while that may be so, there can be no reasonable doubt that its meaning and intent as first framed has remained unchanged. Its language, construed according to its ordinary and natural meaning, leads directly to that conclusion. "Said payments," as used in the original, as appropriately refers to and includes the one class of payments, to wit, the weekly, as the other, the yearly.

But that is by no means all. Neither the original nor the amended order purports to define either the extent of the lien obtained through the attachment made, or the protection which the plaintiff might derive from it. The utmost that either purports to do is to prescribe a stay of execution. What authority existed for that action we have no occasion to inquire. Our present interest is confined to the matter of the existence of an attachment lien covering the payments ordered. Whatever virtue the attachment, made when the divorce proceeding was begun, possessed, as providing security for the satisfaction of the judgment which the plaintiff therein might obtain, was derived from our statutes authorizing and governing attachments, and not at all from the authority of the court having cognizance of the action. It had no original or inherent jurisdiction over that matter, which is one of legislative concern, and none had been conferred upon it. Whether or not, therefore, the plaintiff, when she made her attachment, thereby obtained security for her husband's compliance with any or all orders requiring of him future periodic payments by way of alimony which might be incorporated in the judgment of the court, and if so, what orders, are questions to be determined upon our statutes, and their answer is not dependent in any respect upon the mandate of court. The rights of the defendant could not, therefore, have been harmfully affected by the action appealed from, which, as the court's memorandum shows, was designed to and did leave open for future judicial determination in proper proceedings all questions touching the extent to which the plaintiff was protected by the existence of the attachment.

Upon the appearance of the case in this court a plea to the jurisdiction and a motion to erase it from the docket were filed by the plaintiff. The reasons assigned were that "the appellant did not file any request for a finding nor any proposed finding, nor was any finding ever made by the court or judge who tried the case, as to the facts upon which the judgment appealed from was rendered; and because the notice of appeal and the appeal were not filed within the period provided by the statutes in such cases."

No finding was necessary, as all the facts involved in the appeal were apparent upon the record. General Statutes, §§ 5823, 5824. As the appeal was one taken from an order passed July 3d 1919, and not from any prior judgment or order, it was properly and seasonably taken. The plea was accordingly overruled and the motion denied.

There is no error.

In this opinion the other judges concurred.