Snow v. Calise

¶1The plaintiffs brought suit on April 22, 1974, to recover for alleged serious permanent injuries sustained by the minor plaintiff when the motorcycle on which he was a passenger was allegedly struck by a truck operated by the named defendant.1 From the record we have before us it *569appears that the defendant failed to file a responsive pleading to the plaintiffs’ complaint. However, in February, 1976, a Notice of Dormant Cases was sent to the parties advising them that a hearing would be held on the court’s motion to dismiss the action for failure to prosecute with reasonable diligence as provided for under $ 191A of the Practice Book.2 Thereafter, the plaintiffs’ action was dismissed.

¶2On March 29,1976,3 before the end of the January session, the plaintiffs filed a “Motion to Open Dismissal” (presumably a motion to restore the case to the docket), together with a motion for default by reason of the defendants’ failure to plead. Although the defendants filed an objection to that motion on the ground that the court lacked jurisdiction to hear it, the record reveals that no action was taken by the court on the plaintiffs’ motion. On April 20, 1976, the plaintiffs once again filed a “Motion to Open Dismissal” which was in all *570respects identical to their March 29 motion.4 The court heard this latter motion on January 14, 1977, which it treated as a motion to restore to the docket, and, on January 31, 1977, denied the plaintiffs’ request.

¶3The plaintiffs have appealed from the judgment striking their case and have assigned as error the court’s refusal to restore the case to the docket. This was entirely proper. “A judgment striking a case from the docket is a final judgment terminating the rights of the parties to proceed with the action. Norton v. Shore Line Electric Ry. Co., 84 Conn. 24, 31, 78 Atl. 587. A motion to restore a ease struck from the docket is like a motion to reopen a judgment; the decision upon it is not the basis of an appeal but it may postpone the limitation of the time within which an appeal from the judgment striking the case from the docket must be taken. Beard’s Appeal, 64 Conn. 526, 534, 30 Atl. 775; Equitable Trust Co. v. Plume, 92 Conn. 649, 652, 103 Atl. 940.” Glazer v. Rosoff, 120 Conn. 120, 122, 179 A. 407; Miller v. Bridgeport Herald Corporation, 134 Conn. 198, 201, 56 A.2d 171.

¶4The trial court did not make a finding since it was not requested to do so. “In the absence of a finding and appendix containing relevant evidence, we can properly turn to the memorandum of decision to ascertain the grounds on which the court acted. National Broadcasting Co. v. Rose, 153 Conn. 219, 226, 215 A.2d 123; Maltbie, Conn. App. Proc. § 152.” Keane v. Smith, 163 Conn. 606, 607, 316 *571A.2d 416, cert. denied, 409 U.S. 1113, 93 S. Ct. 927, 34 L. Ed. 2d 696; Worden v. Francis, 170 Conn. 186, 188, 365 A.2d 1205. In its memorandum of decision, the court made it clear that its refusal to restore the case to the docket was based upon its determination that it lacked jurisdiction over the parties.

¶5In the absence of waiver or consent of the parties, a court is without jurisdiction to modify or correct a judgment in other than clerical respects after the expiration of the term of the court in which it was rendered. Lake Garda Co. v. Lake Garda Improvement Assn., 156 Conn. 61, 65, 238 A.2d 393; Foley v. Douglas & Bro., Inc., 121 Conn. 377, 379, 185 A. 70. However, if proceedings to vacate or modify a judgment are begun during the term at which it was rendered, the court may act upon the matter at a subsequent term. D. V. Frione & Co. v. Harbor Construction Corporation, 168 Conn. 386, 387, 362 A.2d 859; Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 209, 355 A.2d 21; Poneleit v. Dudas, 141 Conn. 413, 416, 106 A.2d 479. Under such circumstances, the court retains jurisdiction over the case. Pizzola v. Planning & Zoning Commission, supra. The word “term” as used in the common-law rule that a judgment may not be opened after the term at which it was rendered has been interpreted to mean “sessions” of court as defined in § 51-1815*572of the General Statutes and not the statutory annual term provided for in § 51-1796 of the General Statute v. Cichy v. Kostyk, 143 Conn. 688, 695-96, 125 A.2d 483; D. V. Frione & Co. v. Harbor Construction Corporation, supra. See Hudson Glen Corporation v. Planning & Zoning Commission, 171 Conn. 307, 308-309, 370 A.2d 935; Fidelity Trust Co. v. Lamb, 164 Conn. 126, 134, 318 A.2d 109; 2 Stephenson, Conn. Civ. Proc. (2d Ed.) § 207. Since the April 20 motion of the plaintiffs was not filed within the same court session in which judgment was rendered, therefore, it did not, by itself, operate to preserve the trial court’s jurisdiction and thus allow the court to restore the case to the docket in a subsequent court session.

¶6The plaintiffs’ first “Motion to Open Dismissal” filed on March 29, 1976, however, was filed before the expiration of the session of the Superior Court in which the judgment of dismissal was rendered.7 In its memorandum of decision, the trial court simply states that this motion “was never pursued or heard by the court.” While we may consult the memorandum of decision to determine the basis of the trial court’s action, it establishes no facts and cannot take the place of a finding. Martin v. Connecticut Personnel Commissioner, 167 Conn. 377, 378, 355 A.2d 256. The record presented contains *573no evidence that this motion was either abandoned, withdrawn or stricken. The short calendar schedule for April 9, 1976, mentioned in the dissenting opinion, does not appear in the file before this court. However, upon inquiry of the clerk of the Superior Court in Tolland County, a copy of that short calendar was sent for our examination. No specific notation by the court appears on this schedule to indicate that any affirmative action was taken on the plaintiffs’ motion, and thus, there is no evidence to support the dissent’s conclusion that “no one appeared in support of it and it was stricken.” We do not read Practice Book § 218 as allowing for a party’s pleadings to be permanently stricken from the case in the absence of any indication by the court that this was its express intention. Thus, since the plaintiffs’ March 29 motion constituted a “start of the proceedings” before the expiration of the court session in which judgment was rendered, the trial court was not without jurisdiction to restore the case to the docket. D. V. Frione & Co. v. Harbor Construction Corporation, supra.

¶7At oral argument, the defendants urged this court to apply the doctrines of waiver or abandonment to the plaintiffs’ apparent inaction regarding their first motion. It is significant to note that when such a claim is made, the individual conduct of each party becomes a relevant factor for our consideration. See Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 316 A.2d 394. In the present case, during the twenty-one months which elapsed from the filing of the plaintiffs’ complaint until the judgment of dismissal was rendered, the defendants did not file any pleading to the complaint. We cannot predicate a waiver in favor of “one whose own omission or inadvertence has contributed to the *574problem at hand.” Id., 565. The defendants certainly have not demonstrated the same degree of dne diligence in proceeding with this litigation which they are now demanding of the plaintiffs.

¶8Although we hold that, on the face of the record, the trial court had jurisdiction to restore the present case to the docket, on remand, the ultimate determination regarding that motion rests within the sound discretion of the court. A. Sangivanni & Sons v. F. M. Floryan & Co., 158 Conn. 467, 477, 262 A.2d 159. As we stated in Miller v. Bridgeport Herald Corporation, supra, 202, however, “presumably a court will not deny a motion to restore unless the case has been on the docket for an unduly protracted period or the court is satisfied from the record or otherwise that there is no real intent to prosecute.”8 It is not unreasonable to believe that, in view of the state of the pleadings which had been filed, this case could neither have been placed on the trial list nor actually tried at an earlier date. Practice Book § 192. It is the policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court. The design of the rules of practice is both to facilitate business and to advance justice; “they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.” Practice Book §§ 547, 762.

¶9*575There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

¶10In this opinion Bogdanski, Longo and Speziale, Js., concurred.