Suisman v. Gorentz

Beach, J. On the face of these records the Superior Court did not err in refusing to render supplemental deficiency-judgments. The appraisal, which, by stat *620 ute, is made part of the record, is in each ease far in excess of the mortgage debt, and whatever right the plaintiff has to a deficiency-judgment depends entirely on certain essential facts which he has not pleaded, either in the complaint or in a written motion for a deficiency-judgment, and which do not appear of record, to wit, the existence and amount of prior incumbrances on the properties, by reason of which his available mortgage security is not what the appraisal would indicate, but is in reality less than the mortgage debt in each case. It follows that on this state of the record no valid deficiency-judgment could have been rendered in either of these cases. The findings of the trial court made for the purposes of these appeals are not a part of the record; and no supplemental judgment which depended for its validity upon facts found and not pleaded could properly have been rendered. DeLucia v. Valente, 83 Conn. 107, 75 Atl. 150; Greenthal v. Lincoln, Seyms & Co., 67 Conn. 372, 35 Atl. 266. This conclusion disposes of these appeals, and since the ninety days after the expiration of the time limited for redemption, within which a supplemental judgment may be rendered in the foreclosure suit, have already elapsed, it is unnecessary to pass upon the plaintiff’s claim that the statute is mandatory, and requires the court in which the foreclosure is pending to render a supplemental judgment in all cases where the other terms and conditions of the statute are complied with. There is no error in either case. In this opinion Prentice, C. J., Thayer and Roraback, Js., concurred.