Chapter 898 - Pleading

Sec. 52-91. Pleadings; contents of complaint. There shall be one form of civil action. The first pleading on the part of the plaintiff shall be known as the complaint and shall contain a statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for the relief, which shall be a statement of the remedy or remedies sought. When money damages are sought in the demand for relief, the demand for relief shall set forth: (1) That the amount, legal interest or property in demand is fifteen thousand dollars or more, exclusive of interest and costs; or (2) that the amount, legal interest or property in demand is two thousand five hundred dollars or more but is less than fifteen thousand dollars, exclusive of interest and costs; or (3) that the amount, legal interest or property in demand is less than two thousand five hundred dollars, exclusive of interest and costs. In addition, in a contract action in which only money damages are sought and in which the amount, legal interest or property in demand is less than fifteen thousand dollars, exclusive of interest and costs, the demand for relief shall also set forth whether or not the remedy sought is based upon an express or implied promise to pay a definite sum.

(1949 Rev., S. 7813; P.A. 77-497, S. 2, 7; 77-604, S. 61, 84; P.A. 78-379, S. 19, 27; P.A. 81-416, S. 4, 5; P.A. 82-160, S. 47; P.A. 83-144.)

History: P.A. 77-497 clarified provisions, specifying that complaint shall not allege amount of money damages sought but that it shall be a statement of remedy sought, an allegation of court's jurisdiction and, on and after July 1, 1978, a statement that amount, legal interest or property demanded is or is not less than $7,500; P.A. 77-604 changed effective date of P.A. 77-497 but not with respect to this section; P.A. 78-379 deleted provision allowing defendant to “plead to jurisdiction or in abatement, or both” and form for that plea; P.A. 81-416 provided that on or after July 1, 1981, a complaint must state whether the amount in demand is less than or not less than $15,000, replacing the former amount of $7,500; P.A. 82-160 added provisions concerning the statement required if the amount, legal interest or property in demand is less than $5,000 or less than $2,500; P.A. 83-144 replaced provisions re allegations of the amount in demand and the threshold amounts with the provision that when money damages are sought the demand for relief shall set forth that the amount, legal interest or property in demand, exclusive of interest and costs, is (1) $15,000 or more, (2) $2,500 or more, but less than $15,000 or (3) less than $2,500, and added provision that in a contract action in which money damages of less than $15,000 are sought the demand for relief shall set forth whether or not the remedy sought is based upon an express or implied promise to pay a definite sum.

See Sec. 52-122 re inability of this section to affect flowage petitions on certain proceedings.

See Sec. 52-519 re form of writ, affidavit and bond in replevin actions.

Practice act. Does not change law as to statute of limitations. 52 C. 145. Formal and technical objections should be made known as soon as possible. 53 C. 52; 57 C. 161; 75 C. 279. Does not apply to quo warranto; 55 C. 121; nor to criminal prosecution. 72 C. 606. Application to replevin. 77 C. 463. Rules concerning departure still in force. 60 C. 83; 85 C. 271. Purpose is to do away with artificial forms and distinctions; 56 C. 24; 63 C. 560; 73 C. 5; 83 C. 670; as between law and equity; 63 C. 559; 81 C. 402; but it goes only to matters of form; 68 C. 372; 90 C. 581; pleadings conform to equity practice. 72 C. 195. It did not profess to introduce a complete new system, but to make the old system more convenient; 71 C. 198; to distinguish between what is a defect of substance and one of form; 72 C. 449; to simplify and unify all pleadings; 71 C. 717; to bring into the record a plain statement of facts. 74 C. 702. It encourages but does not require the settlement of all controversies in one action. 79 C. 693; 80 C. 218; 81 C. 246. It enables the court to determine ultimate rights and grant all proper relief. 81 C. 552. It does not seek to bring parties to a single issue. 67 C. 377. Power of court over issues. 80 C. 223; 85 C. 434; 86 C. 561. Controversy in Probate Court not an action. 90 C. 50. Rules apply to book debt. 78 C. 645. Act has not changed substantive law; same facts give right to same redress as before and no other. 90 C. 576. Rules of pleading not applicable to hearing before judge under special statute. 95 C. 89.

Complaint. Term is applicable to action either at law or in equity. 60 C. 213. Recovery in contract may be had, if necessary facts proved, though plaintiff treated action as in tort. 68 C. 459. Necessity of counting on statute in action for statutory relief. 69 C. 210; 72 C. 159; 77 C. 569; 80 C. 434; 81 C. 626. It is better to refer to statute in prayer for relief. 75 C. 694; 84 C. 47. Compliance with all its terms must be alleged. 86 C. 568; 90 C. 527. All material facts must appear. 51 C. 433; 67 C. 378; 79 C. 255. Should not anticipate defense. 73 C. 477; 77 C. 638; 99 C. 311; 81 C. 287. Sufficient to show prima facie right; 77 C. 638; need not allege matter necessary only for complete adjudication of rights; 72 C. 86; or offsets or partial payments; 65 C. 537; in action of contract, general allegation sufficient to give notice of claim suffices. 81 C. 653. Bill of particulars after special count improper. 79 C. 257. Equitable relief should be specially demanded, unless facts show what it should be. 71 C. 251; 78 C. 497. Both legal and equitable relief may be sought. 72 C. 554; 77 C. 214. Need not allege that plaintiff was “specially damaged,” where facts show it. 66 C. 420. Broad conclusion of law insufficient if facts fail to support it. 81 C. 325. Alternative relief may be claimed against corporation or its officers according as contract made by latter is found to be authorized or not. 93 C. 479. In action on specialty, not necessary to allege a consideration. 97 C. 195. Necessary averments in complaints by trustee in bankruptcy to recover property conveyed away by bankrupt in fraud of creditors. 99 C. 310. In appeal from doings of former board of relief, no specific prayer for relief is necessary if relief desired is obvious from allegations of complaint; necessity for averment showing how plaintiff is aggrieved. 109 C. 360.

Pleas to the jurisdiction and in abatement. Plea in abatement is not favored. 69 C. 272; 73 C. 428; 74 C. 126. Must be certain. 64 C. 74; 69 C. 272; 73 C. 538; Id., 563. Will not be aided by inference. 79 C. 526. Must demand relief. 72 C. 444; 74 C. 127. In construing, ordinary import of language followed; not necessary to negative every claim contra. 64 C. 76; 85 C. 618. Proper function to state facts not appearing of record. 82 C. 483; 83 C. 677. Where facts undisputed, plea should be framed to raise question of law. 75 C. 544. Requisites to attack premature bringing of action; 70 C. 157; another action pending; 68 C. 473; 70 C. 157; absence of recognizance in injunction suit; 73 C. 538; defective service; 73 C. 559; tax appeal; 72 C. 330; failure to take appeal to Supreme Court in proper time. 79 C. 526. When plea to jurisdiction unnecessary. 72 C. 430. Defect in jurisdiction of subject matter may be taken advantage of at any time; 71 C. 270; 74 C. 265; 89 C. 200; court may act suo motu; 86 C. 351; 85 C. 517; when motion to erase proper. 79 C. 58; 90 C. 293; 97 C. 123; Id., 399. Demurrer not proper way to raise question. 85 C. 679. Certain issues may be raised either by answer, plea in abatement or plea to jurisdiction. 85 C. 263. Waiver of lack of jurisdiction where nonresident appears, answers and defends. 96 C. 266. Necessity of special appearance and plea to raise issue of jurisdiction. 97 C. 127. When one not a party defendant in trial court entered an appearance there, was treated throughout trial as a party and filed a request for a finding, his status as a party defendant may not be attacked for first time in Supreme Court on plea in abatement. 109 C. 330. Plea to jurisdiction not improper, but plea in abatement may raise any issue going to jurisdiction of court. 121 C. 347. Plea in abatement appropriate remedy for taking appeal to wrong term of court. 122 C. 153. Not necessary that Supreme Court be in session when plea in abatement to appeal filed, and defects in appeal proceedings not waived because counsel filing plea entered general appearance. 130 C. 467. Where defect of jurisdiction appears on face of record, either plea in abatement or motion to erase may be used; 131 C. 532; but plea in abatement necessary if facts are relied upon which do not appear in record, and costs are not recoverable upon granting of motion to erase but are upon sustaining of plea. 133 C. 280. Plea in abatement, defects unavoidable. 132 C. 147. Irregularity in physician's certificate in bastardy proceeding may be subject matter for plea in abatement. 147 C. 418. Plea in abatement filed in the second suit is the proper method of raising the claim of a prior action pending. Id., 482. When want of jurisdiction appears on the face of the record, a motion to erase held proper rather than a plea in abatement. 148 C. 336; 150 C. 588.

Judgment set aside as it did not conform to pleadings. 146 C. 639. Cited. 169 C. 646; 176 C. 401; 179 C. 406; 180 C. 223; 184 C. 569; 209 C. 526. Judgment of Appellate Court in 39 CA 608 reversed. 237 C. 758. Cited. 240 C. 576.

Cited. 1 CA 109; 15 CA 185; 30 CA 129; 39 CA 544; Id., 608; judgment reversed, see 237 C. 758; 45 CA 775.

It is not proper to plead the same matter in abatement and in bar. 1 CS 59. Mortgage creditor seeking to procure a deficiency judgment must allege facts in complaint sufficient to support a judgment in personam. 6 CS 121. Cited. 10 CS 305. Plea in abatement is not favored and should, therefore, comply strictly with the statutory requirements. 16 CS 503. Plea in abatement and to the jurisdiction which contains no prayer for judgment demurrable. 18 CS 155. Motion to erase is proper when court's lack of jurisdiction is evident on the face of the record. 21 CS 19; 156; 352. Demurrer to a plea in abatement, raising the claim that an injured plaintiff is covered by the workmen's compensation act and therefore cannot sue at common law, sustained since the matter raised is actually a matter in bar. Id., 240. Purpose of a plea in abatement is to bring before the court facts affecting the jurisdiction not apparent on the face of the record. Id., 375. Pendency of a prior suit between same parties for the same thing will abate an action unless it appears that the prior suit would be ineffectual. 23 CS 308. Application to court to examine corporate records must be made by writ, summons and complaint. 25 CS 253. Authorization by claims commission for plaintiff to sue the state was related to the amount requested under Sec. 4-147, and suit for more than that amount was abatable. 26 CS 24. Where plea in abatement specified that under a contract between the parties, a condition precedent to any right of legal action was a decision by arbitrators, plaintiff was sufficiently apprised of how the cause of abatement could have been avoided. Id., 42, 43. Where defendant claimed court had no jurisdiction of the action, a plea in abatement was proper. Id., 43. Cited. 34 CS 628; 35 CS 609; 36 CS 47; 38 CS 389; 40 CS 188.

Concurrent remedies do not conflict so as to be pleadable in abatement, even though recovery in one case may operate as bar to another. 2 Conn. Cir. Ct. 96. Demurrer allowed where unable to determine what causes of action were directed to defendant as individual and in her representative capacity. Id., 116. Cited. 3 Conn. Cir. Ct. 317. Where jurisdictional defect claimed is lack of service, the proper pleading is a plea in abatement and not to the jurisdiction. Id., 321.

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Sec. 52-91a. (Formerly Sec. 52-38). Foreclosure. Redemption. Matter in demand. In actions for the foreclosure of title or the redemption of property claimed to be subject to a mortgage or lien, the amount of the debt or liability secured by such mortgage or lien, as described in the mortgage or certificate of lien, shall be deemed to be the amount of the matter in demand.

(1949 Rev., S. 7746.)

History: Sec. 52-38 transferred to Sec. 52-91a in 1983.

Annotations to former section 52-38:

Court of common pleas under former statute had no jurisdiction to foreclose a $3,000 mortgage on account of the nonpayment of semiannual interest. 41 C. 286. Interest on note carrying sum due beyond court's limit will not oust it of jurisdiction. Id., 419. What presumed in support of jurisdiction. 43 C. 279. Under former statute, court of common pleas could not adjudicate the validity and priority of a $1,900 mortgage, although auxiliary to the foreclosure of a judgment lien within its jurisdiction. 70 C. 386. Court cannot extend jurisdiction to an earlier encumbrance exceeding its limit. Id., 388. Rule applied to action to set aside deed. 87 C. 300. Applies by analogy in suit to have alleged lien removed as a cloud on title. 95 C. 68. Cited. 134 C. 653.

Interest due is included but reasonable attorney's fees are not. 16 CS 323.

Amount in demand is amount of lien and determines jurisdiction of court. 5 Conn. Cir. Ct. 346.

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Sec. 52-92. Demurrers to be specific. Section 52-92 is repealed, effective October 1, 2012.

(1949 Rev., S. 7814; P.A. 12-133, S. 47.)

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(1949 Rev., S. 7815–7818; 1967, P.A. 656, S. 38; P.A. 78-379, S. 26, 27.)

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Sec. 52-97. Union of legal and equitable causes of action; limitation. In any civil action the plaintiff may include in his complaint both legal and equitable rights and causes of action, and demand both legal and equitable remedies; but, if several causes of action are united in the same complaint, they shall all be brought to recover, either (1) upon contract, express or implied, or (2) for injuries, with or without force, to person and property, or either, including a conversion of property to the defendant's use, or (3) for injuries to character, or (4) upon claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same, or (5) upon claims to recover personal property specifically, with or without damages for the withholding thereof, or (6) claims arising by virtue of a contract or by operation of law in favor of or against a party in some representative or fiduciary capacity, or (7) upon claims, whether in contract or tort or both, arising out of the same transaction or transactions connected with the same subject of action. The several causes of action so united shall all belong to one of these classes, and, except in an action for the foreclosure of a mortgage or lien, shall affect all the parties to the action, and not require different places of trial, and shall be separately stated; and, in any case in which several causes of action are joined in the same complaint, or as matter of counterclaim or set-off in the answer, if it appears to the court that they cannot all be conveniently heard together, the court may order a separate trial of any such cause of action or may direct that any one or more of them be expunged from the complaint or answer.

(1949 Rev., S. 7819; 1959, P.A. 28, S. 174.)

History: 1959 act deleted reference to actions brought before a justice of the peace.

The facts on which both legal and equitable relief is sought may be stated in a single count. 52 C. 197; 90 C. 285; 99 C. 216; 107 C. 208. Several installment notes for one purchase price may be joined in one count. 54 C. 86. Separate and independent causes of action in favor of distinct and separate persons cannot be joined. 60 C. 399. Amended claim held not to arise from the same transaction as that originally stated. 62 C. 375. Two causes of action, one for breach of contract to take and pay for machines, and one for a conversion of the machines, may properly be joined. 63 C. 560. When use of single count charging fraud and also breach of contract proper. 73 C. 460. Practice act abolishes old forms distinguishing legal and equitable relief. 81 C. 402. Court will give whatever relief party shows himself entitled to. 77 C. 383; 81 C. 552. That several judgments or separate trials necessary, no objection to joinder. 78 C. 575. Legal and equitable relief may be sought in same count. 68 C. 204; 80 C. 685; 107 C. 208. Causes of action by creditor of corporation for unpaid balance of stockholder's subscription, and for capital wrongfully paid to him proper. 74 C. 474; 78 C. 575. Money improperly retained and bonds converted. 80 C. 100. Proper to enforce claim against estate for funds misappropriated, and to secure refund from distributees. 83 C. 75. Judgment for debt and equitable relief to enforce it. 77 C. 214. Damages for fraud and reconveyance of property. 83 C. 109. Damages for trespass and injunction. 72 C. 554; 85 C. 159. Personal injury and failure to keep contract of employment. 73 C. 423. Fraud and breach of contract of exchange. 73 C. 459. Recovery for fees illegally charged on several writs may be sought in one count. 74 C. 243. Claims for wages earned and for breach of contract of employment. 90 C. 695. Prayer for equitable relief by way of cancellation of deed and reconveyance in action of ejectment. 93 C. 370. Several defects in highway. 72 C. 667. Replevin does not lie against two parties claiming different goods. 86 C. 372. Negligence, fraud and breach of warranty not affecting all parties. 82 C. 580. Remedy for misjoinder is demurrer. 79 C. 670. Of joinder in general. 71 C. 369; 73 C. 459. Use of unnecessary counts discountenanced. 71 C. 245; Id., 717; 72 C. 196; 73 C. 100; Id., 182; 73 C. 423; Id., 428; 74 C. 304; Id., 498. Each count should be complete in itself. 76 C. 674. Prayer for relief should follow last count. 71 C. 245; Id., 418. Distinct obligations maturing at different times should be stated separately. Id. Cancellation of deed based on support of grantor, and claim of damages for nonsupport. 91 C. 215. Not necessary to use two counts where relief is claimed in the alternative against one or the other of two defendants. 93 C. 479. Where common law and statutory obligations are claimed to arise out of the same facts, one complaint and one count is proper. 94 C. 227. Action for money obtained by undue influence and for money loaned may be set up in separate counts in one complaint if they arise out of same transaction. 98 C. 205. Scope of legal and equitable relief which may be granted under declaratory judgment act. Id., 803. Action by third party beneficiary of contract. 99 C. 216; 101 C. 647; 105 C. 156; 106 C. 696; 109 C. 259. Not necessary to allege no adequate remedy at law in complaint seeking equitable relief. 105 C. 84. General prayer for equitable relief will support such equitable relief as is required. 106 C. 420. Facts stating cause of action for breach of contract and one for specific performance of contract held properly set up in a single count. 107 C. 208. Cited. 110 C. 24; Id., 214; 139 C. 147; 142 C. 325. Statute does not make equitable doctrine of part performance available in action at law for breach of contract within statute of frauds. 122 C. 507. Proper to join cause of action for foreclosure of mortgage and one to set aside claimed fraudulent conveyances; plaintiff may move for trial on issues presented by second cause of action after judgment of foreclosure granted. 126 C. 688. It is only when the causes of action, that is, the groups of facts upon which plaintiff bases his claims for relief, are separate and distinct that separate counts are necessary or desirable. 134 C. 428. Examples of joinder. Id., 439. No misjoinder because first count alleged title in A's estate and second in L's where two causes arise out of transactions connected with same subject of action. 138 C. 102. Counterclaim not allowed where the liability which it seeks to enforce does not arise out of the written contract which is relied upon in the complaint but out of a tort flowing from the neglect of the landlord to keep the portion of the premises used in common by all the tenants in a reasonably safe condition. 143 C. 708. Torts committed in different states but all parts of an entire course of conduct may be joined, as they arise from the same transaction. 145 C. 709. Counterclaim connected with same transaction must be allowed. 158 C. 364. Cited. 196 C. 359; 217 C. 57; Id., 95.

In action based on absolute guaranty, there is no obligation on part of creditor to first proceed against principal debtor; two causes of action not improperly joined. 2 CS 153. Consolidation of action discussed. 3 CS 168. A transaction is something quite apart from a “right of action” and something more comprehensive than a “cause of action”; it is something which has taken place whereby a cause of action has arisen. 5 CS 174. Cited. Id., 391. Joinder of tort and contract action in one complaint permitted. 6 CS 488. Proper joinder of a negligence action against two defendants and a conspiracy to defraud action against three. 7 CS 45. Cited. 8 CS 218. Cause of action upon events culminating in the execution and delivery of a deed and an action arising from a trespass on the same real estate cannot properly be joined. 12 CS 306. Separate causes of action arising out of the same transaction must be stated in separate counts. 13 CS 314. Joinder of two separate causes of action, each against a different defendant, not permitted. Cited. 14 CS 29; Id., 350. Action for divorce and one for property conveyed in consideration of marriage are properly joined. 15 CS 78. Action for annulment on grounds of insanity and one for divorce on grounds of insanity are properly joined. Id., 89. Quaere whether action for declaratory judgment of illegitimacy may be joined with an action for divorce. 16 CS 70. Where two defendants sold cosmetic preparations to plaintiff who was injured thereby and it appeared in the complaint that plaintiff was unable before trial to determine the harm caused by the product sold by one or the other, there was proper joinder; breach of warranty is based “upon contract, express or implied”. 17 CS 32. Action against city under statute for defective sidewalk and against another defendant for nuisance can be joined but claim must be in alternative. 22 CS 74, 76. Cited. Id., 474. Subdiv. (2): Applies to a plaintiff in the singular. Id.; 23 CS 94. Subdiv. (7): Remedy for misjoinder of causes is taken by demurrer. Id., 93. Claims for a divorce under complaint and cross complaint, each on the ground of intolerable cruelty, and claim for past support under proposed amendment to the cross complaint arise out of the same transaction, namely, the marital relationship of the parties. Id., 352. There was a misjoinder of causes of action where plaintiff, in two counts of malpractice, alleged the negligent performance of two unrelated operations a year apart. 25 CS 404, 405. Terms of section inapplicable to special statutory proceeding, such as tax appeal under Sec. 12-118, but misjoinder may apply to such statutory appeals. 32 CS 140. Cited. 36 CS 47; Id., 56; 38 CS 389.

Court held it not permissible to join action concerned with vilification by plaintiff's agent in attempting to collect on a promissory note with action on note as not arising out of same transaction. 3 Conn. Cir. Ct. 218. Joinder of second count, under implied contract or for reasonable value of services rendered to defendant, to complaint based on express contract was permissible under Subdivs. (1) and (7) where parties were same and causes of action arose out of same transaction. 5 Conn. Cir. Ct. 542.

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Sec. 52-98. Pleadings to allege the material facts in concise form. Section 52-98 is repealed.

(1949 Rev., S. 7820; P.A. 78-379, S. 26, 27.)

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Sec. 52-99. Untrue allegations or denials; costs. Any allegation or denial made without reasonable cause and found untrue shall subject the party pleading the same to the payment of such reasonable expenses, to be taxed by the court, as may have been necessarily incurred by the other party by reason of such untrue pleading; provided no expenses for counsel fees shall be taxed exceeding five hundred dollars for any one offense.

(1949 Rev., S. 7821; P.A. 22-26, S. 43.)

History: P.A. 22-26 replaced $10 with $500.

General denial improper where part of claim is admittedly true. 67 C. 76. Pleader must not take totally inconsistent positions. 82 C. 592, but see 82 C. 623. Effect of violation of this rule; failure of other party to claim penalty; judgment is not invalidated. 99 C. 167. Expenses should be deducted where prevailing party has violated rule. 107 C. 494. One who violates rule not precluded from setting up own defenses in pleading. 124 C. 536. Cited. 218 C. 65. Statute didn't abrogate common law immunity against insurer's knowingly false communications in judicial proceedings as safeguards other than civil liability exist to deter misconduct and provide relief. 342 C. 582.

Cited. 18 CA 344.

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Sec. 52-100. Motions to expunge or correct pleadings. Section 52-100 is repealed.

(1949 Rev., S. 7822; P.A. 78-379, S. 26, 27.)

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Sec. 52-101. Joinder of interested persons as plaintiffs. All persons having an interest in the subject of a civil action, and in obtaining the judgment demanded, may be joined as plaintiffs, except as otherwise expressly provided; and, if one who ought to be joined as plaintiff declines to join, he may be made a defendant, the reason therefor being stated in the complaint.

(1949 Rev., S. 7823; P.A. 82-160, S. 37.)

History: P.A. 82-160 added the words “a civil” before “action”.

Practice act is liberal in respect to parties; 52 C. 235; technical rules abolished. 81 C. 127. When same individual cannot sue as executor and as trustee. 60 C. 399. Cited. 63 C. 476. Several beneficiaries unequally interested may unite to recover damages for the conversion of a single trust fund. 65 C. 556. Ordinarily, plaintiffs may join at will and should not be stricken out without their consent. 72 C. 478. Shareholders in corporation may join in tax appeal where interests are identical. 73 C. 288. When taxpayers appealing from former board of relief may be joined. Id., 293. Parties beneficially but unequally interested in estate may join with administratrix in foreclosing judgment lien. 75 C. 154. Creditors of dissolved corporation properly joined as plaintiffs in action to enforce stockholder's liability. 78 C. 596. Owners abutting on highway may join in action to prevent its obstruction. 79 C. 359. Various certificate holders in safety fund of insurance company properly joined in equitable action to enforce their rights. 80 C. 702. Owner of property proper plaintiff in summary process, though action is brought in behalf of one who has agreed to purchase it. 94 C. 452. Where taxpayer appeals from board of relief because another's property was not assessed at all, such other is a necessary party defendant. 109 C. 361. A mortgagee and one to whom the mortgage has been pledged as security for a debt of less amount than the mortgage may join as coplaintiffs in action to foreclose. 111 C. 111. Cited. 145 C. 191; 146 C. 570. Legislative policy of Secs. 52-101 to 52-110 is in favor of speeding justice. 154 C. 455.

Cited. 7 CA 613.

Who are proper parties to set aside a deed alleged to have been executed under undue influence and mental incapacity. 16 CS 212. Cited. 44 CS 569.

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Sec. 52-102. Joinder of persons with interest adverse to plaintiff and of necessary persons. Upon motion made by any party or nonparty to a civil action, the person named in the party's motion or the nonparty so moving, as the case may be, (1) may be made a party by the court if that person has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff, or (2) shall be made a party by the court if that person is necessary for a complete determination or settlement of any question involved therein; provided no person who is immune from liability shall be made a defendant in the controversy.

(1949 Rev., S. 7825; P.A. 86-338, S. 16; P.A. 87-227, S. 10.)

History: P.A. 86-338 provided that any “party” has the right to make any person a defendant; P.A. 87-227 replaced “Any party shall have the right to make any person a defendant who” with “Upon motion made by any party or nonparty to a civil action, the person named in the party's motion or the nonparty so moving, as the case may be, (1) may be made a party by the court if that person”, added provision that the person “shall be made a party by the court if that person” is necessary for a complete determination or settlement of any question, and added provision that no person who is immune from liability shall be made a defendant in the controversy.

Trustee of mortgage claimed to be void is a proper defendant to suit to set it aside. 49 C. 308. Parties cannot except to irregularities in the process by which others are brought into court. 52 C. 234. Does not permit joinder where there is no joint liability. 53 C. 42. Different owners in severalty of property sought to be condemned may be made joint defendants. Id., 552. A complaint against an administrator can be amended so as to charge him in his individual capacity. 57 C. 304. Action for contribution by one of several guarantors against others. 67 C. 147. Joining several persons who are polluting stream. Id., 496. Absence of suitable but not necessary parties no ground of error. 68 C. 157. Legatees whose interest would be required to satisfy claim against estate are real parties in interest in action to enforce it. 73 C. 403. In action to secure surrender of notes assigned to various parties by payee, all assignees properly joined. 77 C. 427. Creditors of dissolved corporation should be parties to action to enforce stockholder's liability; so administrator of dead stockholder. 78 C. 595. A single judgment may be joint as to some and several as to others. Id., 604. Where agent converts property at direction of principal, both may be joined. 79 C. 577. If one of several grantors seeks to have deed set aside, other grantors should be joined. Id., 644. In equity proceedings, all persons interested should be made parties. Id., 653. In action by administrator to determine right to bank deposit, the adverse claimant and the bank are proper defendants. 80 C. 421. Proper defendants in action involving power of trustee over land deeded away by him. Id., 460. In action to determine rights in safety fund of insurance company, the company, its directors and trustees proper parties. Id., 681. Administrator necessary party to action to charge distributees with fund converted by intestate. 83 C. 75. Where different parties claim portions of one lot of goods, they cannot be sued jointly in replevin. 86 C. 372. Some or all who join in joint and several obligations may be made parties; misjoinder or nonjoinder, if relied on as a defense, should be pleaded. 91 C. 347. Superseded trustee should not be joined in action to determine rights in estate. Id., 444. Relief may be claimed in the alternative against corporation or its officers, where plaintiff does not know whether or not contract was authorized. 93 C. 479. Application to declaratory judgment act. 98 C. 804. Objection to status as a party defendant must be raised with reasonable promptness; waiver where party is treated throughout trial as party defendant. 109 C. 330. In action by nonresident, defendants residing in different counties may be joined only when that is permissible within the fair meaning of Sec. 52-42. 121 C. 226. Court may admit as parties to appeal from Liquor Control Commission persons who have a sufficient interest in the controversy, including municipality as representative of inhabitants. 132 C. 212; 133 C. 157. Motion to be dropped properly granted. 138 C. 28. Denial of motion to add and cite in additional defendant not a final judgment which can be appealed. 146 C. 741. Cited. 153 C. 545; 172 C. 572; 182 C. 1; 184 C. 483; 185 C. 445; Id., 583; 186 C. 311; 191 C. 1; 212 C. 628; 214 C. 1; 233 C. 701; 234 C. 660; 236 C. 670; 239 C. 798.

Cited. 29 CA 618; 32 CA 340; 33 CA 714; 34 CA 634; 35 CA 204; 41 CA 62; Id., 89; 42 CA 330; judgment reversed, see 241 C. 734; Id., 363; 43 CA 227; 46 CA 391. Service of process on individual defendants appearing to initiate a new lawsuit against them, prior to authorization by court to cite in new parties to pending action against corporation, and subsequent request to amend pending complaint to include new complaint against individuals was improper and trial court properly dismissed complaint against individual defendants. 158 CA 550. General contractors do not have an automatic right to intervene in an application to discharge a subcontractor's mechanics lien. 207 CA 649.

Cited. 12 CS 199; 17 CS 34. Mortgagee bank holding mortgage given by grantee who allegedly acquired property from incompetent grantor without consideration is proper party in suit by grantor's conservator to void deed. 18 CS 106. Cited. 19 CS 398. Plaintiff properly moved to be made a party defendant to protect its interest re foreclosure. 25 CS 516. Cited. 26 CS 418. Provisions cannot be stretched to allow defendant to implead as third-party defendant a person who has not been sued by plaintiff. 33 CS 190. Cited. Id., 606; 41 CS 389; 44 CS 469.

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Sec. 52-102a. Impleading of third party by defendant. Rights and remedies of third-party defendant. (a) A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. The motion may be filed at any time before trial and permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action nor work an injustice upon the plaintiff or the party sought to be impleaded.

(b) The writ, summons and complaint so served shall be equivalent in all respects to an original writ, summons and complaint and the person upon whom it is served, hereinafter called the third-party defendant, shall have available to him all remedies available to an original defendant, including the right to assert set-offs or counterclaims against the third-party plaintiff, and shall be entitled to file cross-complaints against any other third-party defendant. The third-party defendant may also assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim and may assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.

(c) The plaintiff, within twenty days after the third-party defendant appears in the action, may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the original complaint, and the third-party defendant, as against such claim, shall have available to him all remedies available to an original defendant, including the right to assert set-offs or counterclaims against the plaintiff.

(d) A third-party defendant may proceed under this section against any person not a party to the action who is or may be liable to him for all or any part of the third-party plaintiff's claim against him.

(e) When a counterclaim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances which under this section would entitle a defendant to do so.

(f) When any civil action in which such a third-party brought in is reached for trial, the court hearing the case may order separate trials of different parts of the action and may make such other order respecting the trial of the action as will do justice to the parties and expedite final disposition of the case.

(February, 1965, P.A. 417; P.A. 82-160, S. 38.)

History: P.A. 82-160 inserted Subsec. indicators and made minor technical changes.

Third-party complaint must contain sufficient allegations to state cause of action equivalent to requirements of original complaint. 156 C. 92. Impleader lies against insurance company notwithstanding a “no action” clause which prohibits suit against the company until judgment has been rendered against insured; section is procedural in nature and applies to all pending actions although contract of insurance giving rise to interpleader was executed prior to passage of statute. Id., 471. Summary judgment granted third-party defendant insurer where pleadings showed action arose from use of the insured's car while away from the premises insured by the insurer under a homeowner's policy. 167 C. 572. Since neither of the third parties could have been liable to plaintiff, consolidation was not required. 180 C. 355. Cited. 187 C. 637; 191 C. 1; 207 C. 575; 210 C. 189; 212 C. 138; 225 C. 401; 239 C. 93.

Cited. 3 CA 100; 13 CA 223; 16 CA 558; 17 CA 159; 25 CA 360; 33 CA 714; 46 CA 18. Statements made in stricken apportionment complaint cannot be used as evidential admissions. 53 CA 373. Nothing in section indicates that court should base decision to grant permission to implead third-party defendant solely on equitable considerations; trial court correctly concluded that defendant was required to file motion to implead before filing third-party complaint and that court lacked personal jurisdiction over person served with third-party complaint because defendant failed to seek and receive trial court's permission before serving third-party complaint. 198 CA 24.

Cited. 26 CS 188. Statute does not apply where person is already party to action; cross complaint not allowed when based on claim different from that of principal complaint. Id., 191. Insurer who disclaimed liability under a policy of insurance may be impleaded by defendant. Id., 483. In absence of legislative intent, statute presumed not to apply to pending proceedings and does not operate retrospectively to defeat barring of claims by statutes of limitations. 27 CS 46. Third-party defendant's motion for nonsuit because of plaintiffs failure to comply with order that plaintiffs make first count of their complaint more specific denied. Id., 465. Sufficiency of third-party complaint may be tested by demurrer; cause of action for breach of contract of sale stated in third-party complaint commenced 4 years and 4 months after breach is barred by statute of limitations and is demurrable. 28 CS 385. Defendant, as third-party plaintiff, may implead, as third-party defendant, executor of operator of car even though defendant's liability to original plaintiff had not yet been determined. 29 CS 9, 13. Statute includes accelerations effect on obligations to indemnity. Id., 171. Plaintiff need not show existing right to relief to institute third-party action for indemnity; before judgment right applies to indemnitors who may be liable in expressed or implied obligations. Id., 192. The purpose of section is to obviate a multiplicity of actions. 33 CS 1, 2. Cited. Id., 188; 34 CS 287, 289. Third-party complaint must contain sufficient allegations to state cause of action equivalent to requirements of an original complaint. 35 CS 82, 88. Motion to strike third-party complaint granted since complaint failed to allege liability of third-party defendant to third-party plaintiff. 36 CS 134. Cited. 40 CS 63; 44 CS 510.

Applies only to person not a party to the action. 4 Conn. Cir. Ct. 419. Guarantee given by third party is sufficient cause for defendant to implead third party. 6 Conn. Cir. Ct. 369.

Subsec. (c):

Filing of third-party complaint by original defendant does not toll running of statute of limitations on a cause of action between plaintiff and a third-party defendant. 21 CA 524. Trial court erred in strictly enforcing the 20-day time limit in case in which the length of delay did not prejudice third-party defendant and would not have delayed trial. 52 CA 136.

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Sec. 52-102b. Addition of person as defendant for apportionment of liability purposes. (a) A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint. The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint. The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h.

(b) The apportionment complaint shall be equivalent in all respects to an original writ, summons and complaint, except that it shall include the docket number assigned to the original action and no new entry fee shall be imposed. The apportionment defendant shall have available to him all remedies available to an original defendant including the right to assert defenses, set-offs or counterclaims against any party. If the apportionment complaint is served within the time period specified in subsection (a) of this section, no statute of limitation or repose shall be a defense or bar to such claim for apportionment, except that, if the action against the defendant who instituted the apportionment complaint pursuant to subsection (a) of this section is subject to such a defense or bar, the apportionment defendant may plead such a defense or bar to any claim brought by the plaintiff directly against the apportionment defendant pursuant to subsection (d) of this section.

(c) No person who is immune from liability shall be made an apportionment defendant nor shall such person's liability be considered for apportionment purposes pursuant to section 52-572h. If a defendant claims that the negligence of any person, who was not made a party to the action, was a proximate cause of the plaintiff's injuries or damage and the plaintiff has previously settled or released the plaintiff's claims against such person, then a defendant may cause such person's liability to be apportioned by filing a notice specifically identifying such person by name and last-known address and the fact that the plaintiff's claims against such person have been settled or released. Such notice shall also set forth the factual basis of the defendant's claim that the negligence of such person was a proximate cause of the plaintiff's injuries or damages. No such notice shall be required if such person with whom the plaintiff settled or whom the plaintiff released was previously a party to the action.

(d) Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint.

(e) When a counterclaim is asserted against a plaintiff, he may cause a person not a party to the action to be brought in as an apportionment defendant under circumstances which under this section would entitle a defendant to do so.

(f) This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiff's damages as a party to the action.

(g) In no event shall any proportionate share of negligence determined pursuant to subsection (f) of section 52-572h attributable to an apportionment defendant against whom the plaintiff did not assert a claim be reallocated under subsection (g) of said section. Such proportionate share of negligence shall, however, be included in or added to the combined negligence of the person or persons against whom the plaintiff seeks recovery, including persons with whom the plaintiff settled or whom the plaintiff released under subsection (n) of section 52-572h, when comparing any negligence of the plaintiff to other parties and persons under subsection (b) of said section.

(P.A. 95-111, S. 1, 2.)

History: P.A. 95-111 effective July 1, 1995, and applicable to any civil action filed on or after said date.

Significance of appeal undermined by legislation; certification to appeal was improvidently granted; appeal dismissed. 239 C. 798. Apportionment complaint seeking to add a person who may be liable to plaintiff under Sec. 52-572h may not be filed against an unidentified person. 253 C. 516. Defendant may assert under a general denial that the negligence of an employer who is not a party to the action is the sole proximate cause of plaintiff's injuries. 287 C. 20.

Cited. 46 CA 18. Reaffirmed previous holdings that section implicates personal jurisdiction and not subject matter jurisdiction and applies to legal malpractice claims against apportionment defendants. 85 CA 655.

Subsec. (a):

Time limitation on bringing apportionment complaint is substantive and mandatory and implicates personal jurisdiction. 269 C. 10. Although compliance with the 120-day limit is mandatory, equitable reasons may excuse compliance, and fact that legal basis for apportioning liability arose only after the 120-day limit had expired constitutes an equitable reason justifying excusal from compliance with the limit. 281 C. 112.

Subsec. (d):

Because language of Subsec. does not include a provision for a nonappearing party, the rules of practice control and plaintiff could not accomplish service through the mail but was required to serve the new claim on the nonappearing party in the same manner as an original complaint is served. 112 CA 28.

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Sec. 52-103. Citation of new parties by judge. Any court, or a judge when the court is not in session, upon motion, may cite in a new party or parties to any action pending before the court or judge, and may include in such citation an order for any proper prejudgment remedy or hearing for a prejudgment remedy.

(1949 Rev., S. 7826; P.A. 81-410, S. 3.)

History: P.A. 81-410 deleted provisions re supplemental attachments and substituted order for any proper prejudgment remedy or hearing for a prejudgment remedy.

Cited. 191 C. 1; 212 C. 628.

Cited. 25 CS 315. Section may not be used by Probate Court appellant to become party to another's appeal. 28 CS 392.

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Sec. 52-104. Joinder of plaintiffs and consolidation of causes. All persons may be joined in one action as plaintiffs in whom any right of relief in respect to or arising out of the same transaction or series of transactions is alleged to exist either jointly or severally when, if such persons brought separate actions, any common question of law or fact would arise; provided, if, upon the motion of any party, it would appear that the joinder might embarrass or delay the trial of the action, the court may order separate trials, or make such other order as may be expedient, and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for the relief to which he or they may be entitled. If two or more persons are joined as plaintiffs in an action, there shall be only one entry fee, one jury fee, if claimed for jury trial, and such other costs as may by rule be prescribed.

(1949 Rev., S. 7824; P.A. 82-160, S. 39.)

History: P.A. 82-160 rephrased the section.

See Sec. 52-36a re claiming consolidated case to jury.

See Sec. 52-484 re interpleader.

Cited. 129 C. 608. Independent of statutory authority, courts of general jurisdiction have inherent power to consolidate different causes, or order them tried together. 130 C. 277. Five plaintiffs furnished materials or services in construction of defendant's house; held proper to join in one action provided any one court had jurisdiction of all causes of action. 139 C. 141. Cited. 143 C. 114; 145 C. 191; 146 C. 570; 191 C. 1.

Cited. 10 CS 391; Id., 528; 12 CS 78; Id., 280. The monetary jurisdictional requirement for an action in the superior or common pleas court is not affected by the permissible joinder of plaintiffs. Id., 78; 14 CS 41; 15 CS 32. Cited. 16 CS 208. A common question of law or fact is not presented where there are two plaintiffs involved in two different accidents in which more than one question must be litigated. 23 CS 93. If much time, effort and expense would be spared in actions between same parties on substantially same grounds, court will grant motion to consolidate. 24 CS 467. Cited. 36 CS 56.

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Sec. 52-105. Numerous parties may be represented by one. When the persons who might be made parties are very numerous, so that it would be impracticable or unreasonably expensive to make them all parties, one or more may sue or be sued or may be authorized by the court to defend for the benefit of all.

(1949 Rev., S. 7827.)

A few of the landowners of town may sue in behalf of all similarly affected; statute not applicable when interests of other parties on whose behalf action is brought are inconsistent with those of plaintiffs. 118 C. 526. Cited. 123 C. 484; 125 C. 698. On application by receiver of mortgage company to sell foreclosed real estate, participating certificate holders should be made parties; if numerous, one or more may represent all. 128 C. 375. Cited. 145 C. 191. Signers of one petition used this procedure to sue signers of another petition; held sufficient. Id., 570. Cited. 154 C. 74, 79. Section did not give plaintiff taxpayers standing to challenge constitutional and legal existence of city of Danbury; doctrine of de facto municipal corporations discussed. 156 C. 347. Cited. 159 C. 457. Section, which permits a class action, deals only with a civil action and cannot be applied to a proceeding under Sec. 4-61l (46a-99), which constitutes a procedure for taking an appeal. 165 C. 516. Cited. 168 C. 212; 174 C. 606; 177 C. 191; 191 C. 1; 192 C. 581; 215 C. 224. Section creates a statutory right to participate in a class action once a trial court deems it appropriate. 285 C. 462.

Does not apply to probate proceedings; statute limited to cases wherein parties are very numerous, not enough that it is impracticable to join all the parties; 6 parties are not very numerous. 13 CS 327. Cited. 25 CS 313; 31 CS 356; 37 CS 46; 41 CS 484; 44 CS 569.

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Sec. 52-106. Executor, administrator or trustee of express trust may sue or be sued alone. An executor, administrator, or trustee of an express trust may sue or be sued without joining the persons represented by him and beneficially interested in the action.

(1949 Rev., S. 7828; P.A. 82-160, S. 42.)

History: P.A. 82-160 replaced “suit” with “action”.

Jurisdiction determined by parties of record, not by those beneficially interested. 34 C. 332. Incapacity of plaintiff to sue must be raised by the pleadings. 52 C. 233. Cited. 62 C. 257. Parties to a suit are made by the writ, not by the complaint. 72 C. 261. Administrator may bring action to enforce judgment lien belonging to intestate; 75 C. 154; or appeal from allowance of claim by commissioners. 82 C. 501. Trustee may be sued without joining beneficiaries of trust. 160 C. 415. Cited. 169 C. 29; 191 C. 1. Plaintiffs who brought action against defendants as executors of the will did not need to join the residuary beneficiaries since they were not indispensable parties. 292 C. 696.

Cited. 5 CA 427; 31 CA 476. Beneficiaries of a trust need not be joined in an action brought by a trustee and in this case all beneficiaries had notice of pending lawsuit and none sought to join as parties. 62 CA 490.

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Sec. 52-107. Additional parties may be summoned in. The court may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the court may direct that such other parties be brought in. If a person not a party has an interest or title which the judgment will affect, the court, on his application, shall direct him to be made a party.

(1949 Rev., S. 7829; P.A. 82-160, S. 43.)

History: P.A. 82-160 rephrased the section.

See Sec. 52-484 re interpleader.

Cited. 24 C. 384; 33 C. 467. Stranger cannot be cited in to secure adjudication of claim not involved in action. 50 C. 583; 65 C. 76; 67 C. 277; 76 C. 542; 79 C. 694; 81 C. 474; 85 C. 429. Holder of mortgage bonds of street railway company not entitled to be made a codefendant in action against it. 56 C. 398. Complaint against one as administrator may be amended to charge him in his individual capacity. 57 C. 304. Taxing communities may be admitted as coplaintiffs with tax collector. 60 C. 118. This and related sections have radically changed the old practice. 63 C. 476. Cited. 65 C. 115. Application to cite in receiver properly refused, if permission to sue him has not been obtained. 66 C. 277. Court may admit persons vitally interested, although not necessary parties. 68 C. 157. Discretion of court where motion has been long delayed. 69 C. 440. Cited. 72 C. 92. Process, not complaint, makes parties. Id., 261. If claim assigned during suit, assignee may be substituted as plaintiff; prima facie showing of interest sufficient. 73 C. 377. Street railway company, primarily liable for defect in highway, may come in as defendant in action for injury due to it. 74 C. 163. Court may permit executor to enter in action brought by testator after time fixed by statute. 77 C. 347. Waiver by executor who voluntarily enters to defend. Id., 382. Right of taxpayer to defend action against city. 81 C. 235. Validity of mechanic's lien cannot be determined in action to which landowner is not a party. 90 C. 7. Third party beneficiary may sue on contract made for his benefit; other necessary parties may be cited in. 99 C. 216. Where taxpayer's complaint in appeal from former board of relief is based on failure to list taxable property of other persons, they must be made parties defendant. 109 C. 361. In appeal from zoning board, proper to permit intervention of property owners claiming their property would be damaged in value by erection of gas tank. 113 C. 695. Liquor Control Commission, while it would have been a proper party to action by town against permittee, was not a necessary party. 133 C. 157. Cited. 153 C. 545; 172 C. 572; 182 C. 1; 184 C. 483; 185 C. 445; 186 C. 311; 191 C. 1; 206 C. 374; 212 C. 628; 215 C. 224; 224 C. 263; 239 C. 1; 241 C. 734. Trial court did not err in denying motion to intervene as a matter of right because the movant did not identify an interest of direct and immediate character that would cause it to gain or lose anything as a result of the judgment in the case, and did not err in denying permissive intervention because the movant failed to demonstrate that Attorney General's defense of constitutionality of the marriage laws would be inadequate. 279 C. 447.

Cited. 7 CA 613; 16 CA 124; 21 CA 67; 31 CA 476; 32 CA 340; 41 CA 89; 42 CA 330; judgment reversed, see 241 C. 734. Statutory language clearly and unambiguously conveys the meaning that section is applicable only in cases in which an action is presently pending before the court, and not in cases in which a judgment has been rendered. 196 CA 70. General contractors do not have an automatic right to intervene in an application to discharge a subcontractor's mechanics lien. 207 CA 649.

Cited. 6 CS 281. Purchasers of corporate real estate from the trustee in bankruptcy were entitled to be joined as parties defendant where general manager of corporation was without assets and in parts unknown. 12 CS 199. A party charged with liability may not bring in another party liable to indemnify him. 13 CS 461. Cited. 18 CS 106; 25 CS 315; 26 CS 418. Section may not be used by Probate Court party to become party to another's appeal; applicant who did not take appeal in time limited lost his right to appeal. 28 CS 392. Cited. 33 CS 606; 36 CS 56; 41 CS 23; Id., 389.

New parties may be cited in upon order of court at any time in the course of an action, provided they receive due notice and a reasonable time to prepare their particular claims or defenses; where additional parties were cited in as parties defendant, the moving papers served on them did not constitute a new civil action, process in which would be subject to provisions of Sec. 52-48a. 3 Conn. Cir. Ct. 321.

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Sec. 52-108. Nonjoinder and misjoinder of parties. An action shall not be defeated by the nonjoinder or misjoinder of parties. New parties may be added and summoned in, and parties misjoined may be dropped, by order of the court, at any stage of the action, as the court deems the interests of justice require.

(1949 Rev., S. 7830; P.A. 82-160, S. 44.)

History: P.A. 82-160 rephrased section.

New defendants may be cited in although no cause of action exists against original defendants; this may be done even after the writ has been abated. 49 C. 110. Administrator held properly admitted as coplaintiff. 54 C. 241. Complaint against administrator may be amended to charge him in his individual capacity. 57 C. 304. Cited. 65 C. 115. Demurrer lies for misjoinder of plaintiff. 67 C. 277, 278. Power of court to drop party misjoined will ordinarily be exercised only on proper request. Id., 278. Cited. 72 C. 92. Plaintiff should not be dropped on motion of defendant, without a hearing. Id., 472. Party liable over in case of judgment may come in as defendant. 74 C. 163. Objection for defect should be made in trial court; 75 C. 278; 76 C. 252; 81 C. 143; may be waived by argument of appeal on merits of case; 75 C. 605; 81 C. 127; 109 C. 330; or may be harmless. 72 C. 519; 76 C. 262; Id., 433; 79 C. 359; 80 C. 460. Misjoined parties should be dropped but action continued. 77 C. 423; 80 C. 702. Where one, long after action began, consents to be made party, but no action taken, court should drop him. 74 C. 18. If action is brought by next friend, and infant has guardian, he could be brought in; 76 C. 433; so where conservator brings action, ward could come in. 91 C. 681. Adverse party may cause one who is party to action in individual capacity but should be party as administrator, to become party in that capacity. 81 C. 132. Proper procedure where plaintiff dies pending appeal by defendant. 82 C. 212. Making corporation party to mandamus proceeding against officers to secure inspection of books disregarded. 90 C. 639. Misjoinder or nonjoinder if relied on in defense must be pleaded. 91 C. 343. Nonjoinder discussed. Id., 501. Statute embraces a case where one having a right to become a party adopts a wrong procedure to do so. Id., 680. Assignment of right by plaintiff pending action will not defeat it; 92 C. 428; but trustee in bankruptcy cannot recover bank deposit in which a third party is interested in his absence. 97 C. 307. Where subject matter of action was transferred during pendency of action, proper to join transferee as party plaintiff. 123 C. 376. Cited. 153 C. 545; 172 C. 572; 182 C. 1; 184 C. 483; 185 C. 445; 186 C. 311; 187 C. 187; 191 C. 1; 212 C. 628; 233 C. 701.

Cited. 22 CA 114; 27 CA 199; 31 CA 80; Id., 476; 45 CA 702. Court has authority to permit intervention in a civil action in interests of justice and, therefore, court had jurisdiction to consider motion to intervene filed by Division of Criminal Justice. 76 CA 130.

Cited. 4 CS 169. No action should be defeated on this technical ground unless it makes the rendition of a proper judgment impossible. Id., 391. Plea in abatement does not lie for nonjoinder; the defect of parties should be raised before trial. 6 CS 281. Where misjoinder of parties is in essence a misjoinder of causes of action, the proper remedy is by demurrer. 12 CS 290. Cited. 15 CS 12. Court in its discretion has authority to drop misjoined parties. 16 CS 212. Cited. 26 CS 418.

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Sec. 52-109. Substituted plaintiff. When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff.

(1949 Rev., S. 7831.)

One who has no right or interest cannot be substituted as plaintiff. 63 C. 460, 472. Substitution is not the commencement or institution of another suit. Id., 477. Cited. 65 C. 115; 72 C. 261. Where conservator brings action in his own name, and ward dies, his administrator may enter. 91 C. 680. Cited. 179 C. 246. Any defect in the standing of plaintiff who commences an action as the conservator of another person who has a colorable claim of injury is cured under section when such conservator becomes the administratrix of such person and is substituted as plaintiff in the present case. 312 C. 1. Addition or substitution of a plaintiff is discretionary, but generally should be allowed when, due to an error, misunderstanding or misconception, an action was commenced in the name of the wrong party, instead of the real party in interest, whose presence is required for a determination of the matter in dispute. 320 C. 535.

Cited. 1 CA 99; 25 CA 751; 31 CA 80; Id., 476; 33 CA 365. Section is remedial in nature and permits court to consider a motion to substitute in the face of a pending motion to dismiss. 136 CA 99. Plaintiff should have moved to have a proper party plaintiff substituted for him in mortgage foreclosure action. 149 CA 224. Plaintiffs did not demonstrate that their belief that they were proper parties to commence action was a reasonable one, held in good faith and not the result of their own negligence in failing to name the proper party such as to constitute mistake under section. 157 CA 55. The term “mistake” as used in section does not mean the absence of negligence. 165 CA 239. Substitution is not categorically barred in every situation in which the decedent pre-deceases the commencement of the original action. 176 CA 64. Administrative appeals commenced under Sec. 4-183 are “actions” salvageable under this section where administrative appeal has been commenced in the name of an improper party due to a mistake. Id. Substitution under section is not categorically unavailable to cure suits commenced by unauthorized parties. Id.

Cited. 18 CS 446. To determine the real matter in dispute, substitution of plaintiff must be allowed. 49 CS 542.

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Sec. 52-110. Summoning in of third parties by defendant who counterclaims. When a counterclaim raises questions affecting the interests of third parties, the defendant may, and if required by the court shall, cause the third parties to be summoned in as parties to the action.

(1949 Rev., S. 7832; P.A. 82-160, S. 45.)

History: P.A. 82-160 rephrased section.

Defendant cannot cite in parties whose legal relation is only to himself, by raising issues which do not affect the judgment to be rendered. 50 C. 583. Cited. 68 C. 157.

Cited. 25 CA 251; 41 CA 754.

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Sec. 52-111. Effect of change of parties. A change in parties, made by order of court, shall not impair any previous attachment of the property of any person remaining a defendant in the action, or impair bonds or recognizances of any person remaining a party, either as against himself or his sureties, or impair receipts to the officer for property attached. When parties are changed the court may order new bonds, if such new bonds are deemed necessary. Orders of court concerning change in parties may be upon terms, as to costs or otherwise, at the discretion of the court.

(1949 Rev., S. 7833; P.A. 81-410, S. 4.)

History: P.A. 81-410 deleted reference to “estate or body” and substituted “property”.

Cited. 54 C. 242; 63 C. 476.

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Sec. 52-112. Insertion of names of partners in process in action by or against a partnership. (a) In commencing a civil action by or against a partnership, it shall not be necessary to insert the names of the partners in the process, provided the partnership name is stated. The plaintiff shall have the right, within the first three days of the court after the return day, to amend the process without costs by inserting the names of the partners.

(b) An attachment, in any civil action against a partnership, of the private property of any of its members shall not be valid unless the name of the member is set forth in the process at the time of the attachment.

(1949 Rev., S. 7834; 1959, P.A. 28, S. 108; P.A. 82-160, S. 46.)

History: 1959 act deleted reference to writs returnable before a justice of the peace; P.A. 82-160 rephrased the section and inserted Subsec. indicators.

The court may extend the time for amending. 19 C. 62. There can be no amendment by adding new names if only one was in the original writ. 24 C. 14. A writ against three as partners can be amended by adding a fourth. 32 C. 106. Cited. 61 C. 227. But plaintiff may sue partners in individual names instead of by partnership name. 103 C. 445. Cited. 117 C. 637; 192 C. 497; 194 C. 144.

Cited. 4 CA 339.

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Sec. 52-113. Common counts; bill of particulars. Section 52-113 is repealed.

(1949 Rev., S. 7835; P.A. 78-379, S. 26, 27.)

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Sec. 52-114. Pleading of contributory negligence. In any action to recover damages for negligently causing the death of a person, or for negligently causing personal injury or property damage, it shall be presumed that such person whose death was caused or who was injured or who suffered property damage was, at the time of the commission of the alleged negligent act or acts, in the exercise of reasonable care. If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant or defendants, and the burden of proving such contributory negligence shall rest upon the defendant or defendants.

(1949 Rev., S. 7836.)

Prior to statute, burden was on plaintiff to establish due care. 118 C. 531. Statute does not apply in action to recover damages under Secs. 13a-111 and 13a-149 for injury caused by breach of statutory duty. 119 C. 479; 133 C. 246; 147 C. 149. Even if statute not applicable, defendant alleging contributory negligence must bear burden of proof. 115 C. 664. Presumption under statute contrasted with other presumptions. 118 C. 58, 64; 130 C. 188. By pleading decedent's lack of contributory negligence, plaintiff waived right to benefit of presumption that decedent exercised due care. 119 C. 339; 123 C. 463. Trial court need not refer to statute or charge in terms that there is presumption of due care by deceased if it makes clear the effect of statute. 123 C. 28. Statute procedural, does not change substantive law that plaintiff cannot recover if his own negligence materially contributed to produce his injuries. 118 C. 537. Presumption does not affect plaintiff's burden of establishing defendant's negligence and that his conduct was proximate cause of injury. 129 C. 385. Where plaintiff alleged due care by intestate and defendant did not affirmatively plead contributory negligence, burden of proof is on plaintiff. 118 C. 471; 129 C. 29. But under such pleading, it is erroneous to charge that contributory negligence need not be considered. 126 C. 398. Plaintiff cannot complain of charge that defendant has burden of proving contributory negligence, without charging re quantum of proof required. 118 C. 212. Charge that burden of proving contributory negligence is on defendant by statute is sufficient when court also charges that party having burden of proof on any issue must meet it by fair preponderance of evidence. 119 C. 278. Where person charged with negligence also died as result of accident, plaintiff has burden of proving his decedent's freedom from contributory negligence. 117 C. 273. Statute not so limited in scope as to apply only to period immediately incident to accident. 118 C. 135. Application of statute to cellar explosion; 118 C. 128; malpractice; Id., 471; burning rubbish; 129 C. 26; drowning; 130 C. 309; collision between vehicles; 117 C. 271; 123 C. 49; 126 C. 396; 129 C. 11; Id., 378; 132 C. 461; pedestrian; 116 C. 150; Id., 716; 118 C. 210; 119 C. 699; 123 C. 25; 128 C. 53; Id., 605; 132 C. 420; 133 C. 329; motorcycle officer; 117 C. 484; policeman; 128 C. 332; highway worker; 126 C. 27; minor; 119 C. 277; 125 C. 526; 127 C. 297; 128 C. 182. Not inaccurate to charge that doctrine of last clear chance need not be considered unless jury found defendant had maintained burden of proving contributory negligence. 130 C. 316. Mere production of evidence tending to prove contributory negligence does not cause burden of proof to revert to plaintiff. 132 C. 465, overruling 131 C. 540. How to charge jury on statute. 133 C. 590. Cited. 134 C. 692. If defendant offers no evidence or fails to prove by a fair preponderance of evidence that plaintiff was negligent, plaintiff is entitled to prevail. 136 C. 171. Court may disregard evidence offered by defendant or hold it insufficient to sustain burden. Id., 550. Cited. 137 C. 551; 138 C. 313; Id., 381; Id., 508. Defendant must plead and prove contributory negligence. Id., 557. No contributory negligence as matter of law under circumstances. Id., 712. Cited. 139 C. 228; Id., 350; Id., 527; 140 C. 274; Id., 319; 141 C. 250; 142 C. 521. Burden of proof as to contributory negligence rests throughout on defendant. 145 C. 146. Application of statute in automobile collision case. 147 C. 540. Cited. 148 C. 447. Trier's conclusion on contributory negligence should stand unless the conduct involved is contrary to that of a reasonably prudent man. 154 C. 490. Where action by administrator of decedent's estate for negligently causing death in collision was tried together with action by defendant against administrator for personal injuries, both parties were entitled to benefit of statutory presumption, original charge to jury re effect of presumption was adequate and court's failure to repeat effect in response to plaintiff's oral request to charge was not error. 156 C. 40. Cited. 159 C. 507; 174 C. 200; 179 C. 406; 188 C. 607; 217 C. 12; 225 C. 637. Appropriate method for conveying effect of section to a jury is to articulate the burdens that it imposes upon the parties; those burdens are that plaintiff must prove defendant's negligence, and defendant must prove plaintiff's contributory negligence if defendant has pleaded it. 281 C. 29. Defense of contributory negligence applies to claims of negligent service of alcohol to minor. 312 C. 184.

Cited. 11 CA 1; Id., 348; 15 CA 668; 17 CA 268; 29 CA 552; Id., 791; 33 CA 714; 43 CA 294. Presumption of plaintiff's reasonable care is proper for jury to consider only when defendant affirmatively pleads contributory negligence. 86 CA 310. A defense that plaintiff's conduct was the sole cause of plaintiff's injury is not a special defense of contributory negligence that must be affirmatively pleaded. 140 CA 444.

Cited. 4 CS 224; 8 CS 110; 12 CS 239. Where plaintiff alleged that she exercised due care, she assumed the burden of proof on that issue and section did not apply. 14 CS 232. History reviewed. 16 CS 144. When section not applicable. 18 CS 124. Presumption does not affect the obligation of plaintiff to sustain burden of establishing negligence of defendant and that the conduct complained of was the proximate cause of injury. Id., 247. Although New York rule requires plaintiff to prove freedom from contributory negligence, in suit instituted in Connecticut resulting from accident in New York, plaintiff was not required to so plead. 20 CS 382. Cited. 21 CS 282; 23 CS 132; Id., 134. In suit brought against municipal employee under Sec. 7-465, burden of alleging and proving contributory negligence remains with employee in accordance with this section. Id., 228. Burden of proof, in the sense of risk of nonpersuasion, is on defendant, although in some instances, as where the facts raise a presumption of negligence, plaintiff may have the burden of going forward with the evidence. Id., 435. When plaintiff fails to show negligence, question of contributory negligence becomes moot. 25 CS 164. After defendant had affirmatively pleaded contributory negligence of plaintiff and all evidence had been presented she could not move for directed verdict upon claim that Rhode Island law controlled and plaintiff had burden of proving freedom from contributory negligence. 27 CS 508. Section, establishing presumption of due care on part of injured person, is applicable to suit against town and its employee under Sec. 7-465, which imposes indemnification liability on municipality. 28 CS 506. Cited. 29 CS 75; Id., 518.

Cited. 4 Conn. Cir. Ct. 217. Jury could reasonably conclude negligence of defendant was proximate cause of injury to plaintiff when plaintiff lit the pilot in defendant's bake oven which defendant had wrongfully assured him was free of gas. Id., 563.

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Sec. 52-115. Pleading charters. All acts of incorporation passed by the General Assembly may be declared on or pleaded as public acts.

(1949 Rev., S. 7837.)

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Sec. 52-116. Transferred to Chapter 897, Sec. 52-73a.

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Sec. 52-117. Action on probate bond. (a) In any action upon a bond taken in a court of probate, not brought by a representative of the estate in connection with which the bond was given or by some person in his own behalf and that of all other persons interested in the estate, the plaintiff shall state in his complaint or reply, (1) the persons for whose special benefit the action is prosecuted, (2) how such persons are interested in the action, and (3) how the act or neglect of the defendant has injured their rights or affected their interests.

(b) The judgment rendered in any such action shall not, in any future proceedings, by scire facias or otherwise, bar or conclude the rights of other persons interested in the bond.

(1949 Rev., S. 7839; P.A. 82-160, S. 48.)

History: P.A. 82-160 rephrased the section and inserted Subsec. indicators.

See Sec. 45a-144 re action on probate bond by aggrieved person.

See Sec. 52-74 re action on foreign probate bond.

Amount of recovery is limited to possible right of person for whose special benefit action is brought. 120 C. 346.

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Sec. 52-118. Action by assignee of chose in action. The assignee and equitable and bona fide owner of any chose in action, not negotiable, may sue thereon in his own name. Such a plaintiff shall allege in his complaint that he is the actual bona fide owner of the chose in action, and set forth when and how he acquired title.

(1949 Rev., S. 7840; P.A. 82-160, S. 36.)

History: P.A. 82-160 rephrased section.

Who may sue under section. 36 C. 88; Id., 296; 39 C. 375; 99 C. 451; 102 C. 434; 106 C. 69. It does not preclude suit in name of assignor. 39 C. 349; 99 C. 451; 102 C. 434. Plaintiff held, on averments of answer, not to be a bona fide owner of the claim. 49 C. 487. Assignee has only equitable title. 52 C. 173. Mere loan of a chose in action insufficient to constitute holder a bona fide owner. 55 C. 127. Ordinarily, assignee stands in shoes of assignor. 64 C. 544; 70 C. 277; 79 C. 575; 82 C. 152; 85 C. 429. Cited. 65 C. 115. Omission of statutory averment is a formal defect of pleading. 71 C. 616. “Bona fide owner” defined. 72 C. 703. Assignee may sue under section or at common law, in assignor's name. Id., 261; 79 C. 693. Assignment of proceeds of note, not assignment of note; assignment of note before receiver is appointed as bar to action by him. 74 C. 317. Effect of denial of bona fide ownership. 75 C. 675; burden of proof and evidence. 88 C. 368. Attorney may purchase claim and sue in his own name. 85 C. 260. Rights of assignee of judgment. 82 C. 208. Changing parties where assignment made after action begun. 73 C. 378. Assignment merely to confer jurisdiction not bona fide; 72 C. 701; 78 C. 495; 121 C. 343; nor one to effect illegal purpose. 77 C. 457. Assignee of claims as collateral may be bona fide owner. 78 C. 211; Id., 679; 79 C. 208. That assignor retains interest in proceeds may not prevent bona fide ownership of assignee. 76 C. 229; 87 C. 50. Waiving lack of allegation. 71 C. 613; 75 C. 256. Right of assignor to sue. 71 C. 616; 74 C. 320. Raising question by plea in abatement. 85 C. 260; 121 C. 343. Assignment pending action will not defeat it. 92 C. 428. Common law rule as to champerty and maintenance does not obtain in Connecticut; question is whether transaction is opposed to public policy. 106 C. 69. While under the acts of Congress, an assignment made simply for the purpose of creating a diversity of citizenship will not afford a basis of removal from the state to the federal courts, an assignment made to avoid such a diversity will be effective to prevent a removal; assignment for purpose of preventing removal to federal court does not give assignee equitable and bona fide ownership on which he could sue in Connecticut. 122 C. 588. Cited. 123 C. 376. Buyer of entire business may enforce by action in own name restrictive covenant of former employee. 126 C. 515. Omission of allegation of “bona fide” ownership is merely defect of pleading challengeable by demurrer but not by a postjudgment motion. 167 C. 334. Cited. 219 C. 465.

Cited. 5 CA 427.

Omission in complaint of the averment that plaintiff was the actual and bona fide owner of the chose in action held a formal defect in pleading. 10 CS 367. Cited. 11 CS 164.

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Sec. 52-119. Pleading to be according to rules and orders of court. Parties failing to plead according to the rules and orders of the court may be nonsuited or defaulted, as the case may be.

(1949 Rev., S. 7841.)

See Sec. 51-59 re hours of operation of court clerks' offices.

See Sec. 52-197 re rules governing orders to disclose facts, papers, books, documents, etc.

Party cannot refuse obedience to order of court because he deems it erroneous, or because it is erroneous; until revoked or reversed, it is the law of the case. 63 C. 566. Statute does not require nonsuit to be granted where to do so would run counter to sound principles of procedure. 130 C. 654. Cited. 180 C. 223; 188 C. 145.

Judgment on the pleadings not proper in absence of responsive pleading by plaintiff to special defense. 24 CS 494.

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Sec. 52-120. Pleading filed by consent after expiration of time. (a) Whenever any party or parties to a civil action, or his or their attorney, desires to file any pleading or amendment to any pleading which might properly be filed except for the fact that according to the rules of court the time within which the pleading or amendment may be filed has passed, the pleading or amendment may be filed with the clerk of the court, without an order of the court and without penalty, if the party or parties, or his or their attorney, obtains the written consent of the adverse party or parties or his or their attorney to the filing.

(b) Upon the filing of the written consent and the pleading or amendment with the clerk of the court, the pleading or amendment shall become in all respects a proper pleading for the consideration of the court, as though filed within the time prescribed by the rules of court.

(1949 Rev., S. 7842; P.A. 82-160, S. 49.)

History: P.A. 82-160 rephrased the section and inserted Subsec. indicators.

Cited. 8 CS 510.

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Sec. 52-121. Pleading may be filed after expiration of time fixed, but prior to hearing on motion for default judgment or nonsuit. Judgment or penalty for failure to plead. (a) Any pleading in any civil action may be filed after the expiration of the time fixed by statute or by any rule of court until the court has heard any motion for judgment by default or nonsuit for failure to plead which has been filed in writing with the clerk of the court in which the action is pending.

(b) No judgment of nonsuit or default, in any case in which appearance has been entered by the defendant, may be entered by the clerk of any court for failure to plead within the time fixed by statute, or by any rule of any court, until an order for it has been passed by the court after reasonable notice to the opposing counsel and hearing thereon.

(c) No penalty for failure to plead within the time provided by any rule relating to the filing of any pleading may be imposed upon any party to any action unless the failure is a violation of an order or judgment made by the court after notice and hearing thereon.

(1949 Rev., S. 7843; 1953, S. 3150d; P.A. 82-160, S. 50.)

History: P.A. 82-160 rephrased the section and inserted Subsec. indicators.

Granting motion for judgment which was not for judgment by default or nonsuit for failure to plead violates statutory guaranty of right to plead further. 131 C. 266. Judgment by default invalid where court refused to hear counsel. 133 C. 696. Cited. 181 C. 607.

Cited. 22 CA 4; 39 CA 306.

Time for filing plea in abatement not extended; 3 CS 312; not applicable to pleadings of the same kind as others which have been disposed of. 8 CS 511. Cited. 10 CS 304; 15 CS 35; 17 CS 46; 19 CS 116. Defendant's right to plead over after a demurrer has been sustained continues until the court has heard a proper written motion for default for failure to plead. 20 CS 17. Cited. 21 CS 352. Inapplicable to motions for disclosure of defense and judgment. 32 CS 581.

Subsec. (a):

Trial court did not abuse its discretion in precluding third-party defendant from filing special defenses where trial court finds prejudice and possible delay. 53 CA 72. Trial court did not abuse its discretion in denying defendant's motion to set aside the default which was filed, with defendant's answer, more than 2 years after the return date. 78 CA 590. In determining whether filing of amended complaint following finding of default effectively extinguished the default and afforded defendant an opportunity to plead in response, the dispositive inquiry is whether the amendment reflected a substantial change to the pleadings in effect at the time that the default was entered. 178 CA 727.

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Sec. 52-122. Procedure in certain actions not changed. Sections 52-1, 52-45a, 52-45b, 52-91, 52-97 and 52-279 shall not affect flowage petitions, or proceedings in paternity, replevin, summary process, habeas corpus, mandamus, ne exeat, quo warranto, forcible entry and detainer or peaceable entry and forcible detainer, or for the payment of rewards.

(1949 Rev., S. 7844; February, 1965, P.A. 574, S. 40; P.A. 81-410, S. 13; P.A. 82-160, S. 51.)

History: 1965 act deleted obsolete reference to repealed Sec. 52-129; P.A. 81-410 deleted reference to Sec. 52-312; P.A. 82-160 rephrased section, deleted references to repealed sections and deleted “prohibition”.

Flowage petitions may still be served by citation. 49 C. 348. Cited. 54 C. 319. Quo warranto. 55 C. 121. Cited. 66 C. 512; 69 C. 22; Id., 498; 104 C. 294. Summary process. 131 C. 531. Cited. 134 C. 435; 217 C. 52.

Listed sections have nothing to do with appellate procedure. 15 CS 273. Cited. 17 CS 34; 36 CS 47; 38 CS 389.

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Sec. 52-123. Circumstantial defects not to abate pleadings. No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.

(1949 Rev., S. 7845.)

Section was originally enacted as a separate act, applicable both to civil and criminal procedure, and so remained until the revision of 1821, when it was incorporated into the present title; it does not affect the right to demur. 40 C. 158. It will help out a plea in abatement. 34 C. 180; 45 C. 479; 60 C. 371. Pleas in abatement in the inferior courts must be filed at an early stage. 21 C. 510. Defendant in an action on contract may plead in abatement the want of service on codefendant. 45 C. 477; 76 C. 628. Plea in abatement will not lie for immaterial variance between writ and copy. 65 C. 539. Error in date of summons not a ground of abatement. 70 C. 351. Appeal from former board of relief; form of process. 72 C. 329. Appealing from justice court to wrong return day. 77 C. 38. Allowance by clerk of appeal from judge as special statutory tribunal. 68 C. 418. Change of return day after issuance of writ. 74 C. 38. Failure of indifferent person making arrest in bastardy to make sworn return. 85 C. 327. In Supreme Court; appeal to term already past; 67 C. 19; not stating time and place of sitting; 70 C. 329; 82 C. 386; to wrong return day; 74 C. 438; 77 C. 38; 83 C. 134; 85 C. 618; taken after time fixed by law; 79 C. 526; 82 C. 376; referring to county, not district; 79 C. 710; defect of parties; 73 C. 432; failure of request for finding to include claims of law. 66 C. 551. Applicable to bastardy complaint addressed to a justice of the peace but in fact presented and sworn to before a commissioner of the Superior Court. 104 C. 126. Cited. 115 C. 705; 122 C. 154; 178 C. 472; 211 C. 78. Limited in application to defects in the writ. Id., 431. Provides relief from defects in texts of writs such as designations of transportation commissioner as transportation commission. 212 C. 381. Cited. 217 C. 520. Designation of Department of Transportation in the summons rather than the commissioner is a misnomer falling within purview of statute. 228 C. 343. “Circumstantial error” discussed. 232 C. 392. Purpose of section is to afford relief from defects found in text of writ itself. 268 C. 541. Section is applicable to pleadings in summary process actions, and where notice to quit in summary process action provided wrong year for date to quit, trial court properly determined that defect was circumstantial and that defendant had received actual notice in accordance with Sec. 47a-23(a). 292 C. 381.

Cited. 3 CA 566; 5 CA 540; 23 CA 188; 31 CA 260. Case remanded for determination of whether naming former plaintiff in motion for deficiency judgment constituted circumstantial defect. 47 CA 459. Correction of the name of substitute plaintiff falls within category of circumstantial errors that can be cured pursuant to section. 56 CA 161. Section is a remedial statute and therefore “must be liberally construed in favor of those whom the legislature intended to benefit.” 81 CA 486. Because trade name is not an entity with legal capacity to sue, corporation had no standing to litigate merits of case when it brought an action solely in its trade name, without corporation itself being named as a party. 87 CA 474. Use of incorrect docket number is a circumstantial defect and does not deprive court of jurisdiction; statute applies to petitions for continued commitment. 92 CA 143. Plaintiff's attorney's failure to sign civil summons form was a circumstantial defect that did not deprive court of personal jurisdiction over defendants because the attorney directed a process server to serve defendants. 96 CA 320. Because named plaintiff used a fictitious name for itself when commencing the action, plaintiff was a fictitious entity and resulting error was not circumstantial and could not be saved under section. 136 CA 683. Section not available to save action where plaintiff conflated her legal capacity as executrix and as an individual and where plaintiff's motion under this section was filed more than 30 days after period for amendment under Sec. 52-128 had run and after action was dismissed. 137 CA 397. Plaintiff's use of trade name, unlike its legal name, when commencing action was not a circumstantial defect that could be cured under section. Id., 514. A scrivener's error such as an incorrect docket number will not deprive the court of jurisdiction, as it constitutes merely a circumstantial defect. 194 CA 727.

The omission of the name of the issuing authority is not an error to abate the pleading. 1 CS 21. Cited. 6 CS 183; 24 CS 295. Savings clause of section does not save from a demurrer a plea in abatement which fails to pray for judgment. 34 CS 251. Cited. 38 CS 712. Listing address of property that was the subject of the zoning appeal in the citation and complaint, rather than plaintiff's business address, was a circumstantial defect even under common law and did not deprive court of subject matter jurisdiction. 50 CS 513. Absence of a recognizance or a defective one in citation is circumstantial defect. Id.

Failure to set out address of defendant in writ is mere circumstantial defect and does not go to jurisdiction of court. 4 Conn. Cir. Ct. 468, 470, 472. Where defendant was served personally, failure to set out his address in writ is circumstantial defect and does not go to jurisdiction of court. 5 Conn. Cir. Ct. 235.

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Secs. 52-124 and 52-125. Plea in abatement; issue of fact; answer over. Amendment after plea in abatement. Sections 52-124 and 52-125 are repealed.

(1949 Rev., S. 7846, 7847; 1961, P.A. 517, S. 133; P.A. 78-379, S. 26, 27.)

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Sec. 52-126. Action not abated on account of marriage. An action commenced by a single person shall not abate on account of the person's marriage. The marriage of the person may be noted on the record and the action may then proceed in the same manner as if the action was commenced after the marriage.

(1949 Rev., S. 7848; P.A. 74-77; P.A. 82-160, S. 52.)

History: P.A. 74-77 removed distinction based on sex of person commencing action, substituting “single person” for “single woman” and “such person's marriage” for “her marriage”; P.A. 82-160 rephrased the section.

Cited. 15 C. 569.

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Sec. 52-127. Process not to be drawn or filled out by officer. Any process or complaint drawn or filled out by a state marshal or constable, except in such marshal's or constable's own cause, shall abate; but process shall not abate on account of any alteration between the time of signing and of serving it.

(1949 Rev., S. 7849; P.A. 82-160, S. 53; P.A. 00-99, S. 110, 154; P.A. 01-195, S. 59, 181.)

History: P.A. 82-160 rephrased the section; P.A. 00-99 replaced references to sheriff and deputy sheriff with state marshal, effective December 1, 2000; P.A. 01-195 made a technical change for purposes of gender neutrality, effective July 11, 2001.

Cited. 4 D. 436; 2 C. 377; 5 C. 538.

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Sec. 52-128. Amendment of pleadings by plaintiff; costs. The plaintiff may amend any defect, mistake or informality in the writ, complaint, declaration or petition, and insert new counts in the complaint or declaration, which might have been originally inserted therein, without costs, within the first thirty days after the return day and at any time afterwards on the payment of costs at the discretion of the court; but, after any such amendment, the defendant shall have a reasonable time to answer the same.

(1949 Rev., S. 7850; 1967, P.A. 742, S. 3.)

History: 1967 act deleted provision that amendment and insertion of new counts be within first 30 days of court to which action is returnable, substituting it be within first 30 days after return day.

Statutes allowing amendments to be liberally construed; 32 C. 108; 39 C. 535; 75 C. 541; apply in U.S. courts. 101 U.S. 263. History and extent of right in general. 73 C. 10; Id., 585. Oral waiver of damages is not an amendment. 69 C. 440. Ordinarily, allowance rests in court's discretion. 10 C. 472; 11 C. 386; 13 C. 471; 39 C. 535; 68 C. 375; 74 C. 62; Id., 126; 75 C. 45; Id., 308; 76 C. 680; 83 C. 417; Id., 477; 85 C. 271. Refusal to allow amendments as insufficient in law; 72 C. 167; 76 C. 329; 77 C. 15; 78 C. 310; 79 C. 401, 405; Id., 458; 86 C. 327; 91 C. 23; if it would lay the basis for no evidence not otherwise admissible, its refusal would be harmless; 82 C. 479; but it is error to refuse an amendment whereby plaintiff is prevented from presenting his real case. 86 C. 561. Amendment not adding any material allegation properly refused; 91 C. 84; so one not altering real effect of pleading. 93 C. 65. Amendment cannot set up new cause of action; 60 C. 398; thus common counts cannot be replaced by cause of action not generally alleged in them. 86 C. 308. If one count of amendment is proper, others may be added. 72 C. 172; 73 C. 17; Id., 585. Amendments considered with relation to identity of cause of action. 18 C. 387; 21 C. 180; 24 C. 39; 26 C. 201; 30 C. 309; 32 C. 376; 33 C. 337; 39 C. 356; Id., 534; 63 C. 369; 66 C. 500; 71 C. 623; 81 C. 702. Question is, is real object the same. 81 C. 433. Distinction between defective statement of cause of action, and statement of defective cause of action. 87 C. 634. Amendment not possible, if there is no original pleading, as where writ is served without complaint. 97 C. 399. At law, matters subsequent to the bringing of the action cannot be brought in. 71 C. 418; 73 C. 385. As to equitable action. 76 C. 292. When amendment to avoid variance allowable. 63 C. 166. Tribunal lacking jurisdiction cannot allow amendment setting it up. 85 C. 517; Id., 530. Amendment destroying jurisdiction after defendant's appearance. 75 C. 621. Amending prayer for relief. 72 C. 201. Appeal from disallowance of claim against insolvent estate. 72 C. 167; 73 C. 582; 81 C. 433. Condemnation proceedings. 69 C. 469. Petition for new trial. 83 C. 477; 91 C. 23. Is allowable at any time before final judgment. 69 C. 554; 83 C. 417. Is of right within 30 days of return day; 75 C. 544; after demurrer sustained is of right; 92 C. 277; thereafter is in court's discretion. 70 C. 700; 81 C. 474. After demurrer sustained. 75 C. 308; 91 C. 25. After plea in abatement. K. 5; 2 R. 525. After report of committee. 25 C. 528. On trial. 2 R. 406; 3 D. 315; 64 C. 556; 69 C. 264; Id., 404; 74 C. 62; 76 C. 680; 82 C. 343; Id., 479; 83 C. 311; Id., 417; Id., 634; Id., 671; 85 C. 90; 91 C. 453. On trial where cross-examination of defendant shows falsity of account he had rendered and plaintiff had accepted. 94 C. 313. Amendment is of right during trial to accord to proof, but requires opportunity to defendant to amend answer. 96 C. 394. Amendment after default judgment; 86 C. 308; after hearing in damages; 69 C. 554; after argument of case; 90 C. 283; after judgment of accounting; 76 C. 292; after motion in arrest; K. 344; 13 C. 471; 31 C. 447; 39 C. 357; on new trial; 51 C. 398; 74 C. 689; 75 C. 42; 77 C. 677; 86 C. 55; after Supreme Court has given its advice on a reservation; 27 C. 470; 60 C. 85; where it grants new trial nisi; 89 C. 255; after stay of action under bankruptcy law; 74 C. 616; after repeated amendments over long space of time; 81 C. 451; after several demurrers have been sustained. 66 C. 284. Refusal 2 weeks after final argument is in discretion of court. 90 C. 281. When too late to bring new action. 4 D. 42; 10 C. 473. Effect of amendment as relating back to beginning of action. 5 C. 590; 22 C. 232; 32 C. 207; 69 C. 554; 105 C. 642; 109 C. 524. Right of defendant to alter plea. 52 C. 4; 45 C. 299; 61 C. 577; 69 C. 555. Discretion of court as to costs; 43 C. 201; cannot be recovered back on final judgment. 50 C. 521. On filing substitute, when original pleading drops out of case. 67 C. 377; 71 C. 424; 74 C. 128. Amendment waives right to review rulings on original. 75 C. 643; 79 C. 79; 80 C. 348; Id., 549; 81 C. 415; Id., 474; 90 C. 261; 93 C. 479. Consent to filing not waiver of defects. 72 C. 257. Immaterial amendment no excuse for refiling defense once held insufficient. 92 C. 342. Application of section to filing of substitute complaint in place of common counts. 93 C. 357. In action for recovery of money obtained by undue influence, another count asking recovery for money loaned may be allowed by way of amendment. 98 C. 206. Amendment may be allowed after appeal from judgment of city court to court of common pleas for judicial district of Waterbury. 104 C. 298. Allowance of amendment to pleading, already sufficient before amendment, is no abuse of discretion if it does not surprise other party. 109 C. 303. Relates back to beginning of action and so may cure errors in admission of evidence under pleadings as they stood before amendment. Id., 524. As special count alleging goods sold and delivered to defendant's wife could have been joined with common counts, joining it later by amendment was allowable. 112 C. 64. Permissible to amend complaint to make pleadings conform to proof, where cause of action for negligence not changed. 120 C. 599. Not abuse of discretion to disallow amendment offered after arguments, when case tried on theory opposed to that of amendment. 124 C. 10. Nor to allow during trial a far-reaching amendment as to damages where defendant given choice of mistrial or continuance. 131 C. 232. Fact that court could have permitted amendment to cure defect does not deprive adverse party of right to take advantage of defect by plea in abatement. 131 C. 658. Cited. 133 C. 73. Court may in its discretion allow the filing of amendments to pleadings before, during and after trial. 135 C. 170. Filing of supplemental complaint after demurrer sustained held to waive any claim of error by court in sustaining demurrer; amended complaint may or may not have the effect of stating a new cause of action. 145 C. 579. Cited. 147 C. 153; 173 C. 408; 187 C. 180; 191 C. 201. In conjunction with Sec. 52-130, court held intent of legislature for this statute to apply only when trial has not commenced at time amendment is offered. 192 C. 553. Cited. 205 C. 413.

Cited. 5 CA 101. Cited. 19 CA 203; 23 CA 188. Because plaintiff may amend “any defect, mistake or informality” of a pleading within 30 days of return date, an amendable summons or complaint should not be rejected by Superior Court clerk. 53 CA 725. Section is a curative provision allowing party to amend defective writ or complaint, permits award of costs in limited instances and makes no reference to sanctions; “costs” defined. 85 CA 66.

Cited. 6 CS 181; Id., 381. Plaintiff entitled to amend by substituting a new defendant, where defendant originally named was an individual having the same name as the corporate defendant substituted, and such individual defendant was an executive officer and principal stockholder of defendant corporation. 9 CS 307. Where the defect is that the sheriff of one county is named in the writ but it was served to the sheriff of another county, defendant cannot attack this collaterally if he was in fact served. 14 CS 375. Where case is on appeal in Superior Court, motion to amend complaint in Probate Court is superfluous. 24 CS 494. Cited. 38 CS 712.

Fact that ad damnum would be increased by amendment sought by plaintiff, necessitating transfer to another court, no reason to deny motion to amend. 4 Conn. Cir. Ct. 347.

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Sec. 52-129. Amendment of pleadings in appeals from justices. Section 52-129 is repealed.

(1949 Rev., S. 7851; 1959, P.A. 28, S. 204.)

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Sec. 52-130. Amendment of defects, mistakes or informalities. Parties may amend any defect, mistake or informality in the pleadings or other parts of the record or proceedings. When either party supposes that in any part of the pleadings he has missed the ground of his plea, and that he can plead a different plea that will save him in his cause, he may change his plea, answer, replication or rejoinder, as the case may be, and plead anew, and the other party shall have reasonable time to answer the same; and, in any case when a party amends or alters any part of the pleadings or pleads anew, if it occasions any delay in the trial or inconvenience to the other party, he shall be liable to pay costs at the discretion of the court. Any court may restrain the amendment or alteration of pleadings, so far as may be necessary to compel the parties to join issue in a reasonable time for trial.

(1949 Rev., S. 7852.)

See Sec. 52-72 re amendment of process.

Amending records after term. 4 C. 77; 15 C. 37; 21 C. 530; 25 C. 342. A void process is not amendable. 5 D. 126. Errors in describing parties. 2 R. 57; 3 C. 159; 13 C. 53; 19 C. 62; 24 C. 13. Date of issuance of process. 41 C. 483. Writ returnable to term already past not amendable. Id., 539, but see 70 C. 348. Amending officer's return. 65 C. 193. Officer's return may not be amended after judgment so as to confer jurisdiction. 85 C. 327. Return day in writ may not be changed after issuance; 74 C. 38; but Supreme Court allowed an appeal to be amended by substituting one year for another. Id., 438. Judgment may be amended during term as to error in substance; at any time as to clerical error. 73 C. 497; 76 C. 113; 81 C. 283; Id., 562. Amending memorandum which directs judgment. 74 C. 18. Remittitur and amendment of judgment where damages are excessive. 75 C. 263. Discretion of court to allow amendment when action has been in court 2 years, and complaint repeatedly amended. 81 C. 452. Motion to dismiss amendment improperly allowed, proper. 86 C. 313. Right to amend to be restrained within reasonable limits; filing cross complaint after reservation. 66 C. 284; 68 C. 369. Amendment to appeal is to be made in Appellate Court; 72 C. 86; on return day. 74 C. 438. Amending plea in abatement. 68 C. 474; 73 C. 428; 74 C. 125. Court may correct its records. 76 C. 113; 81 C. 127; 91 C. 383. Amending memorandum of judgment. 74 C. 23. Gives right to amend to accord with proof on trial, subject to right of defendant to amend answer; but court may refuse to allow demurrer where it would not promote speedy issue. 96 C. 395. When amendment offered during trial to remedy mispleading, circumstances of particular case must govern. 115 C. 683. Court may in its discretion allow the filing of amendments to pleadings before, during and after trial. 135 C. 170. Harm done defendant by denial of motion far outweighed inconvenience to plaintiff or delay resulting from granting of it and was abuse of court's discretion. 139 C. 68. Amendment offered during trial which would radically change basis of plaintiff's cause of action properly refused. Id., 152. Court may in its discretion restrain the amendment of pleadings to prevent unreasonable delay of the trial. 140 C. 689. The courts have followed a liberal policy relative to permitting amendments to pleadings after the expiration of the time during which amendments may be filed as a matter of right. 144 C. 126. Failure to amend complaint at pretrial or within a reasonable time thereafter may constitute sound reason to deny motion. Id., 582. Denial of amendment to conform allegations to proof. Id., 594. Defendant not permitted to amend its answer during trial by adding third defense as this would have injected new issue requiring evidence different in character from that already presented. 155 C. 145. Cited. 177 C. 191; 187 C. 180; 192 C. 558; 215 C. 286; 221 C. 14; Id., 356.

Cited. 19 CA 280.

Power of court to restrain the amendment or alteration of pleading is to be sparingly exercised. 17 CS 47. Cited. 27 CS 63. Legislature has prescribed liberal policy toward the allowance of amendments to pleadings. 36 CS 126.

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Sec. 52-131. Amendment of claim against estate of insolvent debtor or deceased person. In any hearing on the estate of an insolvent debtor or a deceased person before commissioners, or before the Superior Court on appeal from the actions of the commissioners, the claimant may amend any defect, mistake or informality in the statement of the claim, provided that he does not change the ground of action. Any such amendment in the Superior Court shall be upon such terms as to costs as the court directs.

(1949 Rev., S. 7853; P.A. 76-436, S. 126, 681; P.A. 82-160, S. 54.)

History: P.A. 76-436 deleted references to unspecified courts other than superior court, reflecting transfer of all trial jurisdiction to superior court, effective July 1, 1978; P.A. 82-160 rephrased the section.

Amendment held improper as changing the ground of action. 62 C. 373. Substitute statement of claim held allowable. 72 C. 172. “Ground of action” refers to the real object of the creditor in presenting his claim. 73 C. 585; 81 C. 433; Id., 441; 101 U.S. 263. Cited. 124 C. 51. Court may in its discretion allow the filing of amendments to pleadings before, during and after trial. 135 C. 170.

Cited. 13 CS 327. Great latitude is allowed court in permitting amendments. 15 CS 34. Cited. 22 CS 247.

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Secs. 52-132 to 52-134. Amendment of ad damnum clause. Relief beyond jurisdiction; transfer of action. Amendment raising damages after appeal from justice. Sections 52-132 to 52-134, inclusive, are repealed.

(1949 Rev., S. 7854; 7855, 7862; 1959, P.A. 28, S. 109, 204; 1972, P.A. 281, S. 31; P.A. 74-183, S. 83, 291; P.A. 76-436, S. 138, 670, 681.)

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Sec. 52-135. Amendment of pleadings after default or demurrer overruled; costs. The plaintiff, in any cause of action for unliquidated damages in which a default has been entered, or in which a judgment has been rendered upon a demurrer to the complaint overruled, may, at any time before final judgment, amend his complaint on the payment of costs, at the discretion of the court; but, after any such amendment, the defendant shall have a reasonable time to file an answer to the same.

(1949 Rev., S. 7856.)

Cited. 69 C. 554. Default admits allegations of original complaint, not those of subsequent substitute. 86 C. 308. Court may in its discretion allow the filing of amendments to pleadings before, during and after trial. 135 C. 170.

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Sec. 52-136. Amendment from contract to tort and vice versa. The complaint in an action brought for breach of contract may be amended so as to set forth instead a cause of action founded on a tort, arising from the same transaction or subject of action; and any complaint founded on a tort may be amended so as to set forth instead a cause of action for a breach of contract arising out of the same transaction or subject of action.

(1949 Rev., S. 7857.)

See Sec. 52-244 re circumstances under which plaintiff may not recover costs.

“A cause of action arising from the same transaction” is identical in substance with the term “ground of action”. 56 C. 594. Cited. 60 C. 500. Refers not to a new count, but such an amended statement as makes it a statement of a new cause sounding differently. 63 C. 372. Cited. 66 C. 500. Court may in its discretion allow the filing of amendments to pleadings before, during and after trial. 135 C. 170.

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Sec. 52-137. Amendment changing the relief sought. If, on the trial upon an issue of fact or of law of an action in which equitable relief is demanded, it appears that the plaintiff is not entitled to equitable relief, but may be entitled to legal relief, the court may allow the complaint to be amended so as to present a proper case for legal relief. In like manner a complaint demanding legal relief may be amended to entitle the plaintiff to equitable relief.

(1949 Rev., S. 7858; P.A. 82-160, S. 55.)

History: P.A. 82-160 rephrased the section.

Cited. 60 C. 400; 99 C. 216. Court may in its discretion allow the filing of amendments to pleadings before, during and after trial. 135 C. 170. Cited. 163 C. 7.

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Sec. 52-138. Amendment calling for legal relief; jury trial. If any complaint is so amended as to call for legal instead of equitable relief, the court shall not proceed to judgment until the defendant has had a reasonable opportunity to put the issue or issues, on which the new claim for relief may be based, on the jury docket.

(1949 Rev., S. 7859.)

Amendment merely changing date does not give further time in which to claim jury trial. 76 C. 680; 95 C. 576. Court may in its discretion allow the filing of amendments to pleadings before, during and after trial. 135 C. 170.

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Sec. 52-139. Set-off of mutual debts; procedure. (a) In any action brought for the recovery of a debt, if there are mutual debts between the plaintiff or plaintiffs, or any of them, and the defendant or defendants, or any of them, one debt may be set off against the other.

(b) No debt claimed by assignment may be set off unless the plaintiff had notice, at the commencement of the action, that the debt was due the defendant.

(c) If it appears upon the trial that the plaintiff is indebted to the defendant, the court shall give judgment for the defendant to recover the balance due of the plaintiff with his costs, except that no judgment may be given against the plaintiff to recover the balance of a debt due only a part of the defendants.

(1949 Rev., S. 7860; March, 1958, P.A. 27, S. 62; 1959, P.A. 28, S. 110; P.A. 82-160, S. 56.)

History: 1959 act deleted reference to judgment by justice of the peace; P.A. 82-160 rephrased the section and inserted Subsec. indicators.

See Sec. 37-2 re limitation on amount of interest, discount or damages for detention of money which may be recovered by a borrower.

“Mutual debts” defined. 7 C. 223; 8 C. 328; 81 C. 244; 88 C. 198; 108 C. 499; 114 C. 564. The debt set off must have been due and payable when the suit was brought. 32 C. 141, but see 108 C. 499. Suit by executor. 34 C. 66; 1 R. 428. Claims for unliquidated damages. 9 C. 433; 31 C. 343. Suit by receivers of bank, set-off of bills of bank disallowed. 22 C. 644. Interest on balance. 32 C. 564. Judgment debt; demand in plea for judgment for defendant. 28 C. 120. In a suit upon a partnership claim, defendant cannot set off a claim against one of the partners individually. 43 C. 80. Insolvency of savings bank; debtor cannot set off the amount of his deposit. Id., 155. Obligor in bond to a town in a criminal cause cannot set off a claim against the town. 45 C. 353. Debt against insolvent estate, barred by failure to present, may still be used as an offset. 46 C. 277. A defendant pleading set-off is virtually a plaintiff as respects that claim. 49 C. 91. Courts of equity sometimes allow a set-off where a court of law would not. Id., 569. Statutory right of set-off is reinforced and extended by practice act. 50 C. 301; 108 C. 499. Delinquent tax collector cannot set off his claim for salary. 51 C. 172. Lessee of administrator cannot set off debt of intestate against rent. 53 C. 500. Fundamental principles and tests of set-off. 55 C. 127; 108 C. 499. In an action of covenant against encumbrances, unpaid purchase notes of plaintiff may be used as a set-off. 55 C. 431. Set-off not recognized in an action for tort. 66 C. 508; 82 C. 361; 39 C. 366. In action by trustee in insolvency. 65 C. 76. Right of set-off in general; in action by receiver of bank. 88 C. 186; Id., 198. Personal debt of trustee cannot be set off in action by him as trustee. 86 C. 548. Is matter of defense. 82 C. 175. Unliquidated damages in contract may be set off in action on foreign judgment; equitable rights. 81 C. 244. In action against guarantor, he cannot set off debt owed him by plaintiff. 68 C. 525. Set-off of mutual debt not matured permitted where one of mutual debtors has been adjudicated insolvent; statute is not exclusive in its scope. 108 C. 499. Allegations of answer cannot operate as claim for set-off unless accompanied by claim for affirmative relief. 109 C. 5. Set-off between parties distinguished from an accord and satisfaction. Id., 245. Trust company may not set off its own deposits with private banker against certificate of deposit issued to private banker and deposited with State Treasurer in lieu of private banker's bond. 114 C. 560. Where no equitable considerations are involved, defendant under statute can set off debts only when they are presently due him. 117 C. 280; 128 C. 10. Set-off not allowed bank on note against maker's deposit which, before note matured, was assigned to one who paid valid consideration, neither maker nor bank being insolvent. Id., 276. Maker of note which had not matured when trust company suspended held entitled to set off deposit when receiver sued on note. 118 C. 42. Assignee of chose in action takes subject to equities and defenses arising before receipt of notice of assignment; no set-off against assignee where defendant at time of notice of assignment had no right to recover from assignor. 128 C. 4. Set-off distinguished from counterclaim; condition precedent to legal set-off is that it shall be in answer to suit on a debt. 130 C. 210. Cited. 191 C. 104; 207 C. 483.

Cited. 6 CA 106; Id., 417; 12 CA 353; 15 CA 362; 40 CA 536; 44 CA 759.

Cited. 3 Conn. Cir. Ct. 427. Unliquidated assigned claim cannot be set off in action in assumpsit. 4 Conn. Cir. Ct. 581.

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Sec. 52-140. Set-off by defendant in suit by assignee. In any action brought in his own name by the assignee of a chose in action not negotiable, the defendant, or any of the defendants, may set off, in the manner and to the extent provided in section 52-139, any mutual debt between him and the plaintiff or any of the plaintiffs, or between him and the assignors of such chose in action, or any of them.

(1949 Rev., S. 7861.)

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Sec. 52-141. Set-off in action for trespass or tort. (a) In a civil action for trespass to real or personal property or for a tort, unaccompanied by force, resulting in consequential injury, a defendant may set off against any judgment rendered against him any debt which he holds, jointly or severally, against the plaintiff, subject to the conditions contained in subsections (b) and (c) of this section.

(b) (1) This section shall not apply to a civil action for damages for taking property exempt from execution.

(2) No debt which was acquired by a defendant by purchase or assignment after the accruing of the cause of action upon which the judgment is rendered may be allowed as a set-off under this section.

(3) An assignment of the judgment by the plaintiff shall not affect the right of set-off and any such assignment shall be taken subject to the right of set-off.

(4) Any such set-off shall be claimed by filing a complaint in the court in which the judgment has been rendered within twenty-four hours after final judgment.

(5) No set-off may be allowed in cases where the defendant had the right of set-off on the trial of the case.

(c) (1) The court shall make any proper set-off immediately if the debt claimed is admitted by the plaintiff or evidenced by judgment.

(2) If a claimed set-off is not admitted or evidenced by judgment and is denied by the plaintiff, it shall not be allowed unless the defendant has instituted a suit therefor prior to the rendition of judgment in the original action. If any such suit is pending at the time of rendition of judgment for the plaintiff in the original action, the court rendering judgment shall stay execution thereon until the final termination of the suit. Upon termination of the suit, the court shall allow the set-off in the original action in accordance with the amount adjudged to be due on the set-off claim in the suit.

(1949 Rev., S. 7863, 7864; P.A. 82-160, S. 57.)

History: P.A. 82-160 rephrased the section and inserted Subsec. indicators.

No set-off can be allowed in trespass for levying on exempt property, though part of it was not exempt. 33 C. 236. Construction of clause de “taking” property exempt from execution. 45 C. 567. Set-off in tort actions generally. 66 C. 500; 82 C. 362. Unless procedure followed, right is waived; but equitable principles governing in receiverships may require set-off to be allowed. 78 C. 443; Id., 450. Cited. 221 C. 912; 225 C. 146; 233 C. 460.

Cited. 26 CA 322.

Cited. 5 CS 146.

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Sec. 52-142. Joint debtors; discharge; set-off. A discharge to one of several joint debtors, purporting to discharge him only, shall not affect the claim of the creditor against the other joint debtors. The other joint debtors may be sued for the debt and may set off any demand which could have been set off had the action been brought against all the original joint debtors.

(1949 Rev., S. 7865; P.A. 82-160, S. 58.)

History: P.A. 82-160 rephrased the section.

Effect of statute. 39 C. 575. Declaration against one joint debtor sufficient. 48 C. 43. Cited. 89 C. 84.

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