Jurisdictional Statement — MORRIS PARK, INC. v. Buck

| [ Offier Supreme Court, US.

| . FIBED

pupa CC) NAL 1). ! APR 29 1968 ‘

JOY =. DAVIS, CLERK

IN THE SUPREME COURT OF THE UNT!

October Term, oe

es Ms

MORRIS PARK, INC., APPELLANT

VS. :

ELIZABETH BUCK, APPELLEE.

ON APPEAL FROM THE SUPREME COURT |

OF THE STATE OF CONNECTICUT

JURISDICTIONAL STATEMENT

Francis B: Feeley

Counsel for Appellant

59 Central Avenue

Waterbury, Connecticut 06702

James T. Healey .

—Counsel for Appellant

66 Linden Street

Waterbury, Connecticut 06720

3

INDEX

‘ Page

Coline. Seer ..s.... 4°

Ee ar eas Wee 4

Statutes Involved ........................ 5

Question Presented 2. ccc 6

Statement-of the Cace 20000... 6

The Questions Are Substantial ......... Saicebomes ae

Exhibits: |

A Connecticut Supreme Court Opinion: 2.0.0.0 a

B Connecticut Superior Court Opinion ........ | etme 18

_C Connecticut Superior Court Judgment oo... bat 19

D Connecticut Supreme Court Judgment 0 21

Cases l are : ;

Angel v Bullington 330 U. S. 183 oo. ova teaetts aia 5

Antman v Conn. Light & Power 117 Conn. 230 ..................... in

Bailey v Anderson 326 U. S$. 208 occcocc:ccussnunnnnnintnnnn mins ae

Baltimore & O Rye Co..v U. S. 298 U.S. 349 0, 11

Beach v. Trumbull 138 Conn. 282. 2.0). i cicninmnneenneston 16

Best v Humbold Placer Mining Co. 371 U. S. 884 coco. 12

Bragg v Weaver 251 U- S. 57 .... ie, splices Lis

Buck v Morris Park 158 Conn. 290 o.......cc0nuninmnnnnsnnnnnnsnn 4

Central of Georgia R Co. v Wright 207 5 . Geen ae 11

Cocheco Mfg. Co. v Stafford 51 NUH. 455 o.com ae

Coe v Armour Fertilizer Works 287 U.S. 413 occu U1

Congress Bank & Trust v Brockett 111 Conn. 490 .......... 17, 18

Dohany v Rogers 281 U. $. 862... .oommnmnnnn bhi ae

*

ins.

é

Sees v Flynn 107 Conn. 272 a 18

Eqpitable Life Assurance Society v Slade 122 Conn. 451 . 12,18

Equitable Life Assurance Society v Slade 3 Conn. Sup 395 12,17

ICC. v Louisville & WRY 227 U. S. ..... i ao SEATS 11

Link v Wabash Ry 370 U. S. 626 ....... ; sea >

Manmattan Life Ins. Co. v Cohen 234 VU. S. 123 ...2..02000.. 5

McAdams v Bolsinger 57 Ohio Op 338 .. 5s oe

Miller v Meany 12.Conn. Sup 402 «0... fe cia a a> 6

Missouri ex rel Hurwity v North 271 U. S. 40. ncseen soit 17

Proctor v Sochner 143 Conn 9 oo..cccccscsente sable chickannedaeeiel 17

Raley v Ohio 360 U.S. 423 0... | aon

Schroeder v New York City 371 U.S. 208 0.0... oe .. oe

Southern Ry v Virginia 290 U.S. 190 0.000 Cast a 5 11

Vincent v German Ins. Co. 120 Lowa 272 o.oo NEL Shas 16

Washington ex rel —— Ry & Nav Co. v Fairchild 224 U. S.

ck scctcais ick sin oencoanctnceccstiegestaaiaaacdgamaielaal POSEN ah a er 11

Whitney v California 274 U: S. 357 ... sti saaaligciccae amelie se

Wilcox v Bliss 116 U. S. 329 ........... ee 18

Wilson v Standefer 184 U. $. 899 0 /..cccc0enlenmoponmmnnningad UL

Statutes: —

United States Code, Title 28, 4

Section, 1257 (2) | 6

General Statutes of Connecticut, Revision of 1958 |

Section 13 a - 76... anadalaceciionl 16

Section 48 - 12 .... acne

Section 49 - 14 ccm pee 5 , 12,16, 16, 18

| )

4

IN THE SUPREME COURT OF THE UNITED STATES:

October Term, - 1965 —

; aa No.

MORRIS PARK,-INC., APPELLANT .

VS.

_ ELIZABETH BUCK, APPELLEE

ON APPEAL FROM THE SUPREME COURT

OF THE STATE OF CONNECTICUT

JURISDICTIONAL STATEMENT

Appellant appeals from the judgment of the Supreme Court

of the State of Connecticut entered on December 30, 1965,

affirming a Judgment of the Superior Court of the State of

Connecticut for New Haven County at Waterbury entered

on December 4; 1964.

® OPINION BELOW.

The opinion of the Supreme Court of the State of Connecti-

cut is‘reported in 153 Conn. 290. The opinion of the Superior

Court of the State of Connecticut for New Haven County

at Waterbury is not reported. A copy of the Supreme Court

opinion is attached hereto as Exhibit A, and a copy of the

Superior Court opinion is attached hereto as ‘Exhibit B.

JURISDICTION

In this action in the courts below there was drawn i in ques-

tion the validity of a statute of the State of Connecticut on

the ground of its being repugnant to the constitution of the

United States, and the decision of the Court below was in

favor of its validity. The Connecticut Supreme Court specific-

ally ruled upon this question in its opinion (Exhibit A.). The

final judgment in the Court below was dated December 30,

5

| 1965; 1 no application for rehearing was made; notice of appeal

- was filed March 4, 1966, with the Clerk of the Supreme Court —

of Connecticut. The jurisdiction of the Supreme Court to re--

_ view this decision.by appeal is conferred by Title 28, United

States Code, Section 1257. (2). The following decisions sus-

tain the jurisdiction of the Supreme Court to review the judg- —

ment. on appeal in this case: Raley v Ohio 360 U.S. 423

Whitney v. California 274 U.S. 357; Manhattan Life Ins. Co.

v. Cohen, 234 U.S. 123; Angel v. Bullington 330 U.S. 183.

_ STATUTES INVOLVED-

Section 49-14, General Statutes of Connecticut, | Revision

of 1958, appearing in Volume VIII of said General Statutes

at pages 189-190, provides as follows:

“Upon the motion of any. party to a foreclosure, the

court shall appoint three disinterested appraisers, who

- shall, under oath, within -ten days after the time limited .

for redemption has expired, appraise the mortgaged

property and shall make written report of their appraisal

to the clerk of the court where such foreclosure was had.

Such report shall be a part of the files of suck foreclosure

suit, and such appraisal shall be final and conclusive as

to the value of such mortgaged property. The mortgage

creditor, in any further action upon the mortgage debt,

note or obligation, shall recover only the difference be-

tween the value of the mortgaged property as fixed by

such appraisal and the amount of his claim; and the

court in which such action is pending may, if such

appraisal and report thereof have been made, render

judgment for the plaintiff for the difference between such

appraisal and the plaintiff's claim, provided application

for such deficiency judgment has been made by the plain-

tiff within ninety days after the time limited for redemp-

“wg

6

tion has expired. In reckoning such period of ninety days,

the months of July and August shall be excluded from

the. computation.”

QUESTION PRESENTED

Whether or not the Constitutional Right of a party to due

process of law has been violated by the ruling of the Supreme

Court of the State of Connecticut that under a Connecticut © -

Statute a question of fact (in this instance value of property)

is to be finally and conclusively determined by appraisers who

are not to give notice of their meeting to determine such fact,

who are not to hold a hearing, who are’ not to receive evi-

dence, who are-to make their determination upon their own ©

" experience and judgment, and their own estimate as to worth,

: and whose conclusions may not be reviewed or tested at any

stage of the proceedings except as to questions of law; which

fact will be used by a Court in determining property rights.

STATEMENT OF THE CASE

This is an action for strict foreclosure of a mortgage of real

estate, in which the plaintiff below prayed also for a deficiency

judgment under the above quoted statute. Pursuant to that

statut: appraisers were appointed who met to determine. the:

value of the property without notice to the defendant below,

and they came to a conclusion as to value without holding a

hearing or receiving evidence, and filed their report with the

Superior Court.on July 21, (1964. (Pages 14 and 15 of the

Connecticut Supreme Court. Record). Plaintiff below then

moved for a deficiency judgment, her motion being filed

August 18, 1964 (Pages 15 and\16 of such record). The de-

fendant below filed a remonstrance. (Pages 16 and 17 of such

record) stating, inter alia:

7

“The fundamental right of the defendant to due process.

of law as guaranteed to ‘it by the most elementary rules

of justice, fairness arid equity, and as specifically guar- °

anteed to it by the Fourteenth Amendment to the Con--

stitution of the United States and the Twelfth Section of

the First Article of the Constitution of the State of Con:

necticut has been grossly violated by the actions of the

appraisers. ‘ Sigs °

“The spiutintich met with the attorney for the plaintiff

and proceeded to attend to their duties withoutnotice to

the defendant, or to its attorneys who have formally

appeared in ‘these proceedings. No opportunity was

afforded to the defendant to. produce evidence or to bé

heard in any manner. Not only were the doings of the

appraisers carried on in secret and without notice but ia

addition without the actual or constructive knowledge of

the defendant or its attorneys.

" keExRES

“Wherefore the defendant respectfully moves that the

Report of the Appraisers, as on file, be rejected by the

Court, and that the Motion of the plaintiff for a Defi- .

ciency Judgment be denied.

KKEKEES

This remonstrance was filed August 31, 1964. The Superior.

Court in which the proceedings were had was in vacation dur-,

ing July and August of 1964-.

Despite the remonstrance the Superior Court accepted the |

report of .the appraisers, noting in its memorandum that it

could not find any constitutional violation and that the

appraisers appeared to have acted as commanded by the

statute and that any quarrel the defendant might have would

~

8

appear to be with the demands of the statute. (See the Mem-

orandum of the Superior Court, page 18 of said record and

Exhibit B attached hereto)

Also see finding by the Superior Court (p. 25 of said rec-

ord) which includes:

“The defendant made the nates claims of law re- |

specting the judgment to be rendered, ae which the |

Court ruled as hereinafter stated:

ee Lack of notice to the defendant as to the meet-

ing of the appraisers and their meeting with an attorney

for the plaintiff deprived the defendant of its rights to

appear before them, to be heard, to present evidence, and

to present arguments and appeals to reason as to their

conclusions.

“26. Such lack of notice and such deprivation of

rights above listed constituted a fatal violation of due

_ process of law as guaranteed to the defendant by the most

elementary rules of justice, fairness and equity, and as

specifically guaranteed to it by the Fourteenth Amend-.

ment tothe Constitution of the United States and the

Twelfth Section of the First: Article of the nstitution

of the State of-Connecticut.”

“Notwithstanding said claims, the Cpurt rendetey

judgment as on file.” rc

Judgment was thereupon entered for the plaintiff below in

the Superior Court. (f® 19 and 20 ot said record) Exhibit Cc

attached hereto. |

The defendant:below then appealed to the Supreme Court

of Connecticut and in such appeal specifically raised the Con-

stitutional issue:

9

“The questions of law which it Gam to have re-

viewed are:

“1. Did the court err in concluding that the action

of the appraisers in meeting with an attorney for the

- plaintiff aad coming to a conclusiefi_of value without

tice to the defendant or affording the defendant an .

opportunity to appear, to be heard, to present evidence,

and to present arguments and appeals to reason did not

violate due process of law as guaranteed to it by the most

elementary rules of justice, fairness and equity, and as

specifically guaranteed to it by the Fourteenth Amend-

ment to the Constitution of the United States and the —

Twelfth Section of the First Article of the Constitution

of the State of a

_“ASSIGNMENT OF ERROR”

"h ii

“The Court erred in overruling the ‘remonstrance to

the appraisers’ report and in accepting such report.

— —— s

The Court erred:******

“S. In overruljgg the claims of law stated in a para-

graphs 25 and 26 of the finding,”

all as appears on page 21 of said record. _

— sw oe

%

The Constitutional issue was preserved by the brief before

the Connetticut Supreme Court, one section of the appellant's

(defendant below): brief being captioned “The controlling

statute is on its face unconstitutional under both the Four-

teenth Amendment to the United States Constitution and Sec-

10

tion 12 of Article First of the Connecticut Constitution” (page

5 of the brief included in the record) and another section

being captioned “The actions of the appraisers were uncon-

stitutional in that they deprived the defendant of property with-

out due process or due course of law” (page 11 of the brief:

included in the record) and the plaintiff below recognized this

issue in her brief before the Connecticut Supreme Court

(pages 6 to 15 of plaintiff's brief included in the record.)

The Connecticut Supreme Court specifically recognized the

constitutional issue stating in its opinion: “The defendant

claims that General Statutes Section 49-14 is unconstitutional

in that it makes no provision fer notice of the meeting of the

appraisers to*be given to the mortgagor so that the latter may-

introduce evidence and be heard on the question of value, thus

depriving the mortgagor of its property without due process

of law in violation of the federal and state constitutions.”

“Nevertheless the Connecticut Supreme Court sustained the

validity of the statute. Its — is Exhibit D attached

hereto.

THE QUESTIONS ARE SUBSTANTIAL

The ruling of the Connecticut Supreme Court purports to

legitimatize a grossly unfair method of determining a fact

which appears to be squarely..at variance with decisions of the

Supreme Court of the United States. If not reversed it could

well provide an apparently appealing method of determining

facts in many situations. It would substitute “efficiency” for

justice.

It is a fundamental element of due process that a litigant

must be provided, at some stage of the proceedings, a forum

which is mandated to give that litigant notice that it intends

to act and an opportunity to appear, to be heard on the

merits both as to presentation of evidence and as to appeals

11

to reason, and only then to render a decision as to facts which

is binding upon that litigant.

Thus, this Court has ruled that it is essential to due process -

that a litigant is entitled to a full hearing before a tribunal

empowered to perforni the judicial function involved, and

must be afforded the right to introduce evidence and have ju-

dicial findings based thereon; Baltimore & Ohio Ry Co v. U.S.

298 U.S. 349; that the hearing must be mandatory and not

merely a matter of favor or discretion; Coe v. Armour Fer-

tilizer Works, 237 U.S. 413; that the hearing to determine a

fact must not be a mere matter of form but the litigant must

be afforded the right to secure and present evidence material

to the issue and be afforded’ the opportunity by proof and .

argument to controvert a claim asserted against it before a

tribunal bound to listen and to give effect to what has been

established; Washington ex rel Oregon Ry and Nav. Co. v.

Fairchild, 224 U.S. 510; that the party must be given an

opportunity to know. what evidence has been offered or con-

sidered and to test, explain or refute the same; I.C. C. v. Louis-

-ville atid W.R. Co. 227 U.S. 88; that the parties must be

given.an opportunity to be heard on the merits at some stage

of the proceedings before final judgment is entered;: Wilson v

' Standefer, 184 U.S. 399; that the litigant must not be con-

. cluded as to a question of fact without notice or an oppor-

tunity for hearing; Central of Georgia R. Co. v. Wright, 207

U.S. 127; that at some stage of the proceedings the litigant be

afforded the 6pportunity of a hearing on the merits; Bragg v.

Weaver, 251 U.S. 57; and Bailey v. Anderson, 326 U.S. 203;

that a determination of a fact without notice, without hearing,

without evidence and Without the opportunity for a general

judicial review violates due process; Southern R. Co. v.°Vir-

ginia, 290 U.S. 190; that the constitutional right to a full

hearing includes the right to introduce evidence; Baltimore

and O Ry. Co. vs. U. S. 298 U.S. 349; in short that there must

12

be notice and an opportunity to be heard, Best v Humbold

Placer Mining Co., 371 U.S. 334, Link v. Wabash Ry Co. 370

U.S. 626; Schroeder v New York City, 371 U.S. 208;

_ Such decisions of this Court to the contrary notwithstanding

the Connecticut Supreme Court stated in its decision on this

matter that “An appraiser sets a value on property at his

estimate of what it is worth.****** The appraisers determine

the value of property upon their own experience and judg- |

ment. Consequently, they are not required to hear evidence

or to give notice of the meeting at which they make the

appraisal.****** General Statutes, Section 49-14 provides

that the appraisal made thereunder shall be final. and conclu-

sive as to the value of the mortgaged property. Upon a remon=

strance being filed, the ‘power of the court to review the ques-

tion of value is s limited to questions of law. Equitable Life

Assurance Sociéty’ v Slade, 122 Conn. 451, 456, 190 A. 616.”

(See Exhibit A)

Thus the Connecticut Court is cleasty standing upon the

Equitable Life case above cited. In the trial court decision on

that case (3 Conn. Sup. 395- 404) Judge, Baldwin had con-

. ducted a hearing on the merits and had substituted his own

conclusions as to fact for at least some of those made by the

appraisers. The Connecticut Supreme Court, on’ appeal, as

above cited, ruled.

1. that the trial court was without power to conduct a

hearing on the merits (p. 454—“The statute precludes a re-

view by the Court of the question of value as a question of

fact, and limits the inquiry before it to questions of law.”****

go, 655-—".. 2... that there might be no doubt that the

court’s function in determining value in all its aspects had

been transferred to the appraisers, the act provided: ‘such

appraisal shall be final.and conclusive as to the value of said

_ mortgaged property’ "eeeee* 1 456 “In short, as already

13 ‘

stated, its power to review the question of value here does not

extend to the determination of it as a question of fact but is

limited to questions of law’’)

2. that there could be no opportunity for hearing before

the appraisers for (p. 458) “...... having no power under

the statute to summon witnesses or hear evidence, as does a

committee named in proceedings to hear evidence and make

a report based upon it, they are appointed that they may, in

' the light of such personal knowledge as they have or may:

acquire, bring to bear upon the matter of value their own

judgment. In so far as their conclusion involves the exercise of

judgment upon their part, it of course cannot be reviewed.”

Accordingly, it is clear that Connecticut has ruled that a

question of fact is to be determined, pursuant to a Connecti-

cut statute, by a tribunal which is, not only not bound but is

powerless, to afford-a hearing or receive testimony or appeals

. to reason; that insofar as it is powerless to hold a hearing no

purpose is to be served in giving notice of its meeting; and

that its determination as to the facts is final and conclusive

' except as to errors of law; in other woids at no stage of the

. proceedings is a party to be afforded an opportunity for a

hearing on the merits.

The finding of facts in the Connecticut proceedings on this

case are somewhat ambivalent in that it is never. clearly

spelled out whether or not the appellant had notice of the .

meeting of the appraisers or whether or not they held a hear-

ing. This ambivalance in this instance is immaterial insofar as

the Connecticut Court has ruled that as a matter of law they

_ “are not required to hear evidence or give notice of the meet-

ing at which they make the appraisal.” Also, it is clear that

despite the murkiness of the finding of facts on these points

both the Superior Court and the Connecticut Supreme Court

based their decisions on the concept that no notice had been

14

a ra ae) a

given nor hearing held and that neither was requisite.

- The appellant is not before this tribunal because of what

three individuals may or may not have done; it is here because

the Sovereign State of Connecticut has mandated that its rights

are to be determined in a manner contrary to basic concepts

enunciated -by this tribunal; even if the appraisers had at-

tempted on. their own initiative to give notice and hold a hear-

ing this would have been a matter of happenstance, of favor,

of accident, of luck; furthermore, the Sovereign State of Con- _

necticut has ruled that such notice, if it had been given, and

such hearing, if it had been held, would each be a nullity be-

cause the appraisers were without power to hold a hearing and

accordingly notice would be meaningless.

It is submitted that the decision of the Supreme Court of

Connecticut fails to recognize and apply the appropriate Con-

stitutional limitations and provisions. We believe that the

questions presented by this appeal are substantial and that

they are of public importance.

Francis B. Feeley

Counsel for Appellant

59 Central Avenue

Waterbury, €onnecticut 06702

James T. Healey :

Counsel for Appellant

66 Linden Street |

Waterbury, Connecticut 06720

15

EXHIBIT A

SUPREME COURT

November Term, 1965

ELIZABETH F. BUCK v. MorRIS PARK, INC. °

Action to foreclose a mortgage, brought to the Superior

Court in New Haven County at Waterbury, where, after judg-

ment of foreclosure and failure to redeem, appraisers were

appointed who filed their report, to which the defendant filed

a remonstran@® and the plaintiff having filed a motion for a

deficiency judgment, the court, Cotter, J., denied the remon-

strance, accepted the report, and rendered a deficiency judg-

ment, from-which the defendant appealed. No error. j

James T. Healey, with whom, on the brief was Frank T.

Healey, Jr., for the appellant (defendant).

Robert H. Alcorn, with whom were F. rancis R. Cassidy, Ire

and, on the brief, Arthur T. Connor, for the appetite (plain-

tiff).

Murpuy, J. The plaintiff obtained a judgment of strict fore- _

closure of a $35,000 mortgage on the defendant’s property,

which the defendant failed to redeem before the expiration of

its period of redemption on July 15, 1964. Upon motion of

_ the plaintiff, three ‘disinterested appraisers were appointed by:

the court, and they, under-oath, within ten days after the. time

limited for redemption, appraised the mortgaged property and

made written report thereof to the court as required by Gen-

eral Statutes § 49-14. The defendant filed a remonstrance to

the acceptance of the report which the court, after hearing,

overruled. The report was accepted, and a supplemental judg-

‘ment was rendered for the deficiency between the total amount

due on the mortgage debt with costs and fees and the

appraised value of the property. The defendant - appealed

from that judgment.

“4;

F wns

The defendant claims that General Statutes § 49-14 is un-

constitutional in that it makes no provision for notice of the

- meeting of the appraisers to be given to the mortgagor so that

the latter may introduce évidence and be heard on the ques-

tion of value, thus depriving the mortgagor of its property

without due process of law in violation of the federal and

state constitutions. In-support of this contention, the defendant

_ avers that the appraisers should conduct a hearing and hear

evidence in a manner similar to the procedure followed by

referees and committees in assessing damages for the taking

of land by the highway commissioner for highway purposes

and for the condemnation of land for other public uses. Gen-

eral Statutes §§ 13a-76, 48-12. In this it is mistaken. The .

purpose and manner of appraising and determining the value

of property as a quasi-judicial act on a motion for a deficiency

judgment is entirely distinct and different from the judicial act

of a committee in assessing the amount of damages in eminent

domain. So. far as the dicta in Antman v. Connecticut Light &

Power Co., 117 Conn. 230, 239, 167 A. 715, can be con-

strued to the contrary, it is overruled. An appraiser sets a

value onproperty at his estimate of what it is worth. Beach v.

Trumbull, 133 Conn. 282, 290, 50 A.2d 765; Cocheco Mfg.

Co. v. Stafford, 51 N.H. 455, 482; McAdams v. Bolsinger,

_ 57 Ohio Op. 338, 340, 129 N.E.2d 878. The appraisers deter-

mine the value of property upon their Swn: experiéhce and

judgment. Consequently, they are not required to hear evi-

dence or to give notice of the meeting at which they make the

appraisal. Vincent v. German Ins. Co., 120 Iowa 212; 278,

94 N.W. 458.

General Statutes § 49-14 provides that the appraisal’ made

thereunder shall be final and conclusive as to the value of the _

mortgaged property. Upon a remonstrance being filed, the

power of the court to review the question of value is limited

17

to questions of law, Equitable Life Assurance Society v. Slade,

122 Conn. 451, 456, 190 A. 616. The constitutional due

process requirements ‘are satisfied where the complainant has

had reasonable notice and reasonable opportunity to be heard

and to present his claim or defense, due regard being had to

the nature of the proceeding and the character of the rights ©

, which may bé affected by it. Dohany v. Rogers, 281 U.S..362,

369, 50 S. Ct. 299, 74 L. Ed. 904; Missouri ex rel. Hurwitz

v. North, 271 U.S. 40, 42, 46 S. Ct. 384, 70 L. Ed. 818;

Procior v: Sachner, 143 Conn. 9, 17, 118 A.2d 621. It must

be borne in mind that this was an action for the foreclosure

of a mortgage on the defendant’s property: The mortgage was

the security for the money loaned to the defendant. It ap-

peared and participated in the foreclosure. It obtained an ex-

tension of the law day by stipulation with the plaintiff and had ~

_ the opportunity to redeem but did not do so. It had notice of°

the appointment of the three appraisers and in fact nominated

one of those selected. It also had notice of the motion for

deficiency judgment and was fully heard on its remonstrance

to the acceptance of the appraisers’ report. Nothing more* was

‘ required to protect the rights of the defendant. The due

process clause in the federal constitution does not guarantee *

any particular form or method of state procedure to the. citi-

zens of the state. Proctor v. Sachner, supra.

‘The record indicates that the defendant’s attitude is moti- .

vated by the action of the appraiser.it nominated in signing a

unanimous appraisal report on the value of the property at a

* figure considerably lower than his personal belief. There was

nothing to prevent him from filing a minority report if he did —

not agree with his coappraisers on the valuation. See Congress

Bank & Trust Co. v. Brockett, 111 Conn. 490, 491, 150 A.

742.

There is no error.

In this opinion the other judges concurred.

any

,

18

‘EXHIBIT B

MEMORANDUM. AS TO REMONSTRANCE TO ACCEPTANCE

: OF APPRAISERS’ REPORT

_In the writ, summons and complaint the plaintiff asked

for a deficiency judgment. In response to plaintiffs motion

the Court appointed Thomas McKeon, Peter Luddy and

Theodore Carroll on May 29, 1964, as a committee, under

§ 49-14. Final law day was July 15, 1964. On July 18, 1964,

the committee met with an attorney for the plaintiff, were ~

sworn, viewed the property, came to an opinion of, value

and executed their report which was filed in Court July 21,

1964. Sei5 |

-The appraisers acted under the requirements set forth in

§ 49-14 and returned their report in accordance therewith.

The Court cannot find any constitutional violation in the

procedure undertaken and the apprajéers appeared to act as

commanded by the statute. Any gvarrel the defendant has |

would appear to be with the denfand of § 49-14. Miller vs.

any, 12 Conn. Sup: 402; Dunn vs. Flynn, 107 Conn. 272;

Congress Bank & Trust Co. vs. Brockett, 111 Conn. 490; Wil-

cox vs. Bliss, 116 Conn. 329; Equitable Life Assur. Soc. vs.’

Slade, 122 Conn. 451. © : '

The report is accepted and the remonstrance. denied.

CoTTER, J.

‘ [Filed at Superior Court, Waterbury. Date: November _

: 25, 1964.] 2 |

19 .

EXHIBIT .C :

State of Connecticut |

No,28697° nad

ELIZABETH F. Buck, widow, of

“ort Pierce, in the. State of

‘

Florida i . Superior Court,

. = |. New Haven County,

Morris Park, INC., a corporation| - _held at

organized under the laws of the { . Waterbury,

State of Connecticut and having; December 4, 1964.

its principal office in the Town of .

Waterbury, County of New Ha- !

ven and. State of Connecticut.

SUPPLEMENTAL JUDGMENT. FOR DEFICIENCY

ON STRICT FORECLOSURE

‘A judgment having been rendered in thjsaction on

-March 20, 1964, for the strict foreclosure of the] plaintiff's

mortgage, whereby the plaintiff's mortgage debt was found

to be $36,703.34, together with attorney’s fees of $600.00

and the costs of the suit taxed at $201.05, which were due

from the defendant, Morris Park, Inc., to the plaintiff, and

_ whereby also the last date for the redemption for said mort-

gage by the payment to the plaintiff of said debt, interest,

attorney’s fees and costs was limited to June 15, 1964, the

case came thence to May 29, 1964, when upon application

of the plaintiff, the Court appointed Theodore Carroll, Peter

Luddy and .Thomas McKeon, disinterested persons, to ap-

praise the mortgage premises and make their report to the

Court;-atid thence to June 12, 1964, when the Court, upon -

the stipulation of the parties to said action, reopened said

judgment of strict foreclosure for the purpose of extending

20

the day of redemption from June 15, 1964, to July 15, 1964,

otherwise said judgment to remain the same; and thence to ~

July 21, 1964, when said appraisers filed their report, ap-

praising said premises, under oath, at $25,000.00; and thence

to September 18, 1964, when the Court accepted said ap-

praisers’ report and denied the defendant’s remonstrance to

the acceptance of said appraisers’ report.

The Court having heard the parties finds that said apprais-

ers’ report should be and is hereby accepted and approved;

and further finds that said mortgaged premises were not re-

deemed by any party thereto and that title vested in the |

plaintiff on July 16, 1964; that thére was on said July 16,

1964, an encumbrance -on said mortgaged property which

was and is prior to the plaintiff's mortgagé as follows: Taxes

to the Town of Wolcott, with interest and lien thereon to

said day, amounting in the whole to $941.21; that there was

due to the plaintiff on said day the amount found due by

said judgment on said March 20, 1964, the original date of

said judgment, $36,703.34, arid costs of $201.05 and attor-

ney’s fees of $600.00, with interest on said mortgage debt

from said March 20, 1964, to said July 16, 1964, amounting

to $676.65, making a total sum of $39,122.25; and that the

balance of the mortgage debt and attorney’s fees and costs,

deducting the value of the property as fixed by said apprais-

ers less said prior encumbrance, amounts to $14,122.25.

Whereupon it is adjudged that the plaintiff recover of the

defendant, Morris Park, Inc., $14,122.25 plus the costs-of

these proceedings taxed at$...........-.445.

° - CorTer,

"oo Judge.

21

EXHIBIT D

STATE OF CONNECTICUT

At a Supreme Court of Errors Held at Hartford ..........

On the First Tuesday of November, A.D. 1965

Present, Hon. John H. King, Chief Justice,

Hon. James E. Murphy

Hon. James C. Shannon

Hon. Charles S. House

Hon. William P. Barber

Elizabeth F. Buck, widow, of Fort)

Pierce, in the State of Florida

vs.

Morris Park, Inc., a corporation

organized under the laws of the :

State of Connecticut and having

its principal office in the City of

Waterbury, County of New Ha-

ven, State of Connecticut.

JUDGMENT

va

|

4

4

Associate Judges.

*

On Appeal From

The Superior Court

For New Haven

County at Waterbury

This appeal by the defendant claiming error in the process,

record and judgment, and in the proceedings and decisions of

the Court on questions of law arisi

appear in the certified transcript of r

in the trial, as may

rd and finding of facts,

_,on file in this Court, was allowed by the Superior Court for

New Haven County at Waterbury, on the 15th day of Decem-

ber, A.D. 1964, and came to this Court, at its term held at

22

Hartford, on the first Tuesday in May, A.D. 1965, and thence

by continuance to the present term, when the parties appeared

and were fully heard.

And now this Court finds that in the record, judgment and

I ME al ca Galekins sank eee see KR Superior

Court for New Haven County at Waterbury, ............

nde ate ale Giada ee eS there is no error.

It is therefore considered and adjudged that said judgment

be confirmed and established, and that the ..............

appellee recover of the appellant .......... ae eee

eg Pere ey eee :

Date of judgment, December 30, 1965.

By the Court,

Edward Horwitz

Clerk

BLANK

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