Sec. 52-80. Nonsuits and withdrawals; costs. If the plaintiff, in any action returned to court and entered in the docket, does not, on or before the opening of the court
on the second day thereof, appear by himself or attorney to prosecute such action, he
shall be nonsuited, in which case the defendant, if he appears, shall recover costs from
the plaintiff. The plaintiff may withdraw any action so returned to and entered in the
docket of any court, before the commencement of a hearing on the merits thereof. After
the commencement of a hearing on an issue of fact in any such action, the plaintiff may
withdraw such action, or any other party thereto may withdraw any cross complaint or
counterclaim filed therein by him, only by leave of court for cause shown.
(1949 Rev., S. 7801.)
After a nonsuit, the cause cannot be reinstated without notice to, or consent of, both parties. K. 361. Entry for costs to
be made during the term. Id., 269; 35 C. 4. Proof of withdrawal. 14 C. 174. Petition cannot be withdrawn after judgment
pronounced; K. 273; but may be after report of committee is known, though not filed. 25 C. 136. Right to withdraw suit
or to be nonsuited, not affected by plea of set-off and claim of judgment thereon. 43 C. 61. After case has been heard and
reported by committee, it cannot be withdrawn. 47 C. 436. Judgment treated as rendered at the time of withdrawal and not
when costs are taxed. 48 C. 301. Withdrawal of justice suit after return of writ cannot deprive defendant of his right to a
judgment for costs. 57 C. 270. Plaintiff may withdraw actions without knowledge of attorney; and in vacation. 78 C. 659.
Withdrawal after filing of counterclaim or set-off. 76 C. 530; 80 C. 218. Withdrawal after answer filed as creating estoppel.
80 C. 504. Of right of withdrawal in general. 85 C. 673. Nonsuit proper for failure of plaintiff to plead over; 72 C. 257; or
to produce evidence; discretion of court; 75 C. 314; or to prosecute action. 71 C. 339. Cited. 123 C. 18; 142 C. 713; 152
C. 699; 154 C. 289, 293. Case withdrawn may be restored to docket by court on proper showing during term at which
withdrawal filed. 123 C. 166. After commencement of hearing it is within discretion of court to deny motion to withdraw
cross complaint. 125 C. 472. Petition for winding up is "action" to which this section applies. 171 C. 699, 701. Right of
plaintiff to withdraw action terminates not with completion by appraiser of his report, but with commencement of procedures
to be followed in arriving at appraisal. Id., 699, 703. Since appraiser never appraised value of plaintiff's shares in corporation
or value of real estate as of appropriate date, and in absence of any specific order specifying power and authority of appraiser
pursuant to Sec. 33-384, determination of value of corporation's real estate did not amount to "hearing of an issue of fact"
as would terminate plaintiff's right to withdraw their action. Id., 700, 704. Cited. 194 C. 400, 403-405.
Cited. 5 CA 101, 103. Cited. 13 CA 150, 156, 157. Cited. 24 CA 93, 96. Cited. 26 CA 426, 430, 431. Cited. 37 CA
515, 520, 521. Cited. 44 CA 771. Trial court improperly restored case to docket; trial court lacked subject matter jurisdiction
because no appraiser had been appointed to assess the value of the corporation, and thus no fact-finding had occurred. 54
CA 384.
Cited. 4 CS 165; 6 CS 195. Withdrawal of divorce action with respect to alimony and support payments discussed. 16
CS 88. This section applicable to condemnation proceedings. Id., 230. Plaintiff failed to make a timely claim for a jury
trial so case withdrawn and a new suit immediately commenced for same cause of action; on motion of the defendant the
original case was restored to the docket. 21 CS 371. Court has continuing jurisdiction to determine any claim of a vested
right acquired during the pendency of an action and prior to its withdrawal, but it must first reinstate it on the docket before
granting the relief sought. Id., 497.
Plaintiff's move to withdraw action denied where memorandum of decision had previously granted defendant judgment
on his demurrer. 5 Conn. Cir. Ct. 439. Where case has been voluntarily withdrawn court does not have jurisdiction to
entertain motion to reopen until steps are taken to restore case to docket. 6 Conn. Cir. Ct. 91, 92. Trial court alone has
power to open, set aside, vacate or modify judgment, and exercise of that power is unaffected by taking of appeal. If case
has gone to judgment, motion to withdraw cannot be entertained until after judgment is opened and vacated. Id., 168, 169.
Sec. 52-81. Costs taxable on withdrawal. Upon the withdrawal of any civil action
after it has been returned to court and entered upon the docket, and after an appearance
has been entered for the defendant, a judgment for costs, if claimed by him, shall be
rendered in his favor, but not otherwise. Judgment for costs shall not be rendered after
the expiration of six months from the date of the withdrawal and no costs may be allowed
which accrued after actual notice in writing of the withdrawal was given by the plaintiff
to the defendant or his attorney, unless good reason therefor is shown to the court.
(1949 Rev., S. 7802; P.A. 82-160, S. 30.)
History: P.A. 82-160 rephrased the section.
Applies to cases withdrawn before, as well as to those withdrawn after, the return day. 70 C. 380. The right to costs, if
it exists, rests on some statute or authorized rule of court. 73 C. 614. See note to section 52-80. Cited. 123 C. 168. Cited.
240 C. 58.
Cited. 20 CA 218, 220-222.
Cited. 16 CS 88.
Sec. 52-82. Withdrawal when court not in session or before return day. The
plaintiff may withdraw a civil action when the Superior Court is not in session or at any
time before the return day, by filing in the clerk's office a written notice of the withdrawal, signed by himself or his attorney, specifying the action withdrawn and the time
of withdrawal. The clerk shall enter the action on the docket of the court, at or before
its next return day, with a note of the withdrawal and of its date.
(1949 Rev., S. 7803; 1967, P.A. 656, S. 37; P.A. 76-436, S. 402, 681; P.A. 82-160, S. 31.)
History: 1967 act substituted "when the court is not sitting" for reference to court's being "in vacation"; P.A. 76-436
removed actions returnable to court of common pleas from purview of section, reflecting transfer of all trial jurisdiction
to superior court, effective July 1, 1978; P.A. 82-160 rephrased the section.
A suit before a justice of the peace cannot be withdrawn before it is returned. 29 C. 519. See notes to sections 52-80
and 52-81. Cited. 123 C. 168.
Sec. 52-83. Nonresident plaintiff's appearance by attorney sufficient. In any
action brought by one who is not an inhabitant of this state, the clerk of the court shall
enter in the record of the cause the name of the attorney by whom such plaintiff appeared,
which record shall be evidence that such attorney was the lawful attorney of the plaintiff.
(1949 Rev., S. 7804.)
An objection that the attorney appears without authority must be taken early. 2 R. 348. Applies where nonresident
plaintiff sues under a trade name. 94 C. 85.
Sec. 52-84. When judgment by default may be rendered. When any process has
been served on any defendant and returned to court, if he does not appear on or before
the second day after the return day, judgment by default may be rendered against him.
(1949 Rev., S. 7805; 1967, P.A. 742, S. 2.)
History: 1967 act substituted "second day after the return day" for "second day of its session".
See Sec. 51-55 re judgments of default or nonsuit.
The judgment should be entered at the first or second term. 17 C. 537. It may be opened on terms. 38 C. 497. It admits
a cause of action, but nothing more. 26 C. 436; 33 C. 250; id., 346. A default admits only the cause of action stated in the
complaint. 45 C. 58. There may be an actual appearance to defend, without an entry on the docket. 51 C. 391. Nature of
judgment by default. 67 C. 133; 69 C. 440; 75 C. 76; 97 C. 123. Default admits complaint as it stands, not as it may be
amended. 86 C. 308. Contents of judgment file. 73 C. 680. Opening defaults; discretion of court. 69 C. 355. Effect of
default for nonappearance. 97 C. 125. See notes to sections 52-212, 52-220. Cited. 139 C. 535. Court, in its discretion,
may allow the filing of a late appearance. 148 C. 435.
Cited. 24 CS 83.
Sec. 52-85. When garnishee may move to assign case for trial. When, in an
action commenced in the Superior Court by process of foreign attachment or garnishment, the defendant does not appear, if the plaintiff does not take a default in the action
within four months after the return day, the court may, at any time thereafter, upon
motion of any garnishee in the action, assign the action for trial.
(1949 Rev., S. 7806; P.A. 76-436, S. 412, 681; P.A. 82-160, S. 32.)
History: P.A. 76-436 removed actions brought to court of common pleas from purview of section, reflecting transfer of
all trial jurisdiction to superior court, effective July 1, 1978; P.A. 82-160 added "or garnishment" and rephrased the section.
Sec. 52-86. When creditor may appear and defend. Costs. Prohibited defenses.
(a) In any action in which property has been attached, any person may appear and defend
in the name of the defendant if: (1) He files in the court an affidavit (A) that he is a
creditor of the defendant, (B) that he has good reason to believe, and does believe, that
the amount which the plaintiff claims was not justly due at the commencement of the
action, and (C) that he is in danger of being defrauded by a recovery by the plaintiff;
and (2) he gives bond with surety to the plaintiff, in such amount as the court approves,
for the payment of such costs as the plaintiff may thereafter recover.
(b) If the plaintiff recovers his whole claim, costs shall be taxed against the defendant to the time of the appearance of the creditor, and the creditor shall be liable upon
his bond for the remainder of the costs. If only a part of the plaintiff's claim is recovered,
the whole costs shall be taxed against the defendant, and the creditor shall not be liable
for the same. If judgment is rendered in favor of the defendant, costs shall be taxed in
his favor against the plaintiff, but the court may order that the judgment and execution
therefor shall belong to the creditor.
(c) A creditor appearing pursuant to the provisions of this section shall not be permitted to plead in abatement, to plead or give in evidence the statute of limitations, to plead
that the contract was not in writing according to the requirements of the statute, or to
plead any other statutory defense consistent with the justice of the plaintiff's claim.
(1949 Rev., S. 7807; P.A. 82-160, S. 33.)
History: P.A. 82-160 rephrased the section and inserted Subsec. indicators.
Does not impair any right of attaching creditor, but affords him an additional remedy. 25 C. 362. Cited. 151 C. 611.
Garnishment of a debt due a nonresident defendant is in the nature of a proceeding in rem; no service of process on the
defendant is required. 20 CS 293. Cited. 25 CS 274.
Sec. 52-87. Continuance on account of absent or nonresident defendant. Exceptions. (a) Every civil action in which the defendant is an inhabitant of this state but
is absent from the state at the commencement of the action and continues to be absent
until after the return day, without having entered any appearance therein, shall be continued or postponed for thirty days by order of the court. If the defendant does not then
appear and no special reason is shown for further delay, judgment by default may be
rendered against him.
(b) If the defendant is not an inhabitant or a resident of this state at the commencement of the action and does not appear therein, the court shall continue or postpone it
for three months and may, if it deems further notice advisable, direct such further notice
of the pendency of the action to be given to the defendant by publication in some newspaper, or otherwise, as it deems expedient, or may authorize any person empowered to
serve process by the laws of the foreign jurisdiction in which the defendant resides to
serve upon the defendant a copy of the summons and complaint and of the order of
notice. Any such person serving process in a foreign jurisdiction shall make affidavit
of his actions concerning the process on the original order of notice. If, upon the expiration of such three months, the defendant does not then appear and no special reason is
shown for further delay, judgment may be rendered against the defendant by default.
Upon the expiration of the three-month continuance, it shall be presumed prima facie
that no special reason for further delay exists. In actions of foreclosure, including prayers
for relief incident thereto and part thereof, judgment may then be rendered upon the
plaintiff's motion for judgment of foreclosure.
(c) The provisions of this section shall not apply in the case of any civil action
brought under and pursuant to section 47-33 or 52-69, and no continuance or postponement of any such action or additional notice of the pendency thereof may be required
unless the court so orders.
(d) A continuance or postponement under this section shall not be granted or, if
granted, shall terminate if actual notice is shown in accordance with section 52-88.
(e) The provisions of this section shall not apply in the case of any civil action in
which service of process is made pursuant to subsection (c) of section 52-59b with
respect to a nonresident individual or foreign partnership over whom the court may
exercise personal jurisdiction as provided in subdivision (4) of subsection (a) of section
52-59b.
(1949 Rev., S. 7808; 1957, P.A. 282; 1959, P.A. 151; P.A. 82-160, S. 34; P.A. 92-38, S. 3.)
History: 1959 act amended third sentence to provide for continuation or postponement where defendant does not appear
"therein" (referring to this state) rather than where he does not appear "and answer thereto" (referring to the action; P.A.
82-160 rephrased the section, added Subsec. indicators and added Subsec. (d) concerning the denial or termination of a
continuance or postponement; P.A. 92-38 added Subsec. (e) re nonapplicability of section to civil action in which service
of process is made pursuant to Subsec. (c) of Sec. 52-59b with respect to nonresident individual or foreign partnership
over whom court can exercise personal jurisdiction.
No bond is necessary if the defendant returns and has notice of suit before second term. 8 C. 115. Not applicable to
suits begun by foreign attachment against a defendant not in this state. 49 C. 452. Judgment rendered without continuance
not void, but only erroneous. 62 C. 553. Statute applied to garnishment of debt due nonresident. 79 C. 15. Proper procedure
outlined. 108 C. 175. Cited. 113 C. 81; 116 C. 49; 121 C. 35; 150 C. 192. Cited. 181 C. 607, 608. Cited. 183 C. 369, 371,
374. Cited. 196 C. 172, 173. Cited. 226 C. 1, 9.
Cited. 16 CA 619, 637.
Purpose is to secure notice of suit to absent defendant. 2 CS 18. Requirements of this section must be met in annulment
action where defendant has not been served by process in this state. 14 CS 316. Applicable where nonresident defendant
does not appear and answer in action brought under section 52-62. 19 CS 285. To be read in conjunction with Sec. 52-88.
33 CS 570. Continuance not granted if nonresident has actual notice. Id., 571.
Subsec. (b):
Cited. 9 CA 1, 11, 12.
Sec. 52-88. Defense by garnishee. Continuance, postponement or adjournment of action. In any action in which property is garnished, if the defendant does not
appear, any garnishee may be admitted to defend his principal; but, if the defendant is
not in this state and does not appear, personally or by attorney, and the garnishee does
not appear to defend, the action shall be continued, postponed or adjourned for three
months from the return day of the writ. A continuance, postponement or adjournment,
prescribed in section 52-87 or this section, shall not be granted or, if granted, shall
terminate whenever the court finds that the absent or nonresident defendant, or his authorized agent or attorney, has received actual notice of the pendency of the case at least
twelve days prior to such finding, and thereupon, unless some special reason is shown
for further delay, the cause may be brought to trial.
(1949 Rev., S. 7809, 7810; P.A. 82-160, S. 35.)
History: P.A. 82-160 replaced action "by foreign attachment" with "in which property is garnished".
An appearance by garnishee will not justify a judgment at the first term. K. 377. A garnishee, who defends, may retain
costs from the funds factorized. 2 R. 250. "If the defendant is not in this state" applies to a nonresident defendant and not
to an inhabitant of the state temporarily absent. 49 C. 452. Cited. 79 C. 15; 121 C. 35. Applied in action of ejectment;
proper procedure outlined. 108 C. 175.
Actual notice under this section obviates need to grant continuance provided in Sec. 52-87. 33 CS 570, 572.