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, when. 63 C. 560. Use of
single count charging fraud and also breach of contract, when 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. See notes to sections 52-1, 52-91. 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, see 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. See note to
section 52-93. Each count should be complete in itself. 76 C. 674. Distinct obligations maturing at different times should
be stated separately. 71 C. 418. Cancellation of deed based on support of grantor, and claim of damages for nonsupport.
91 C. 215. Prayer for relief should follow last count. 71 C. 245; id., 418. 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 the 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, Note. 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, 382. Cited. 217 C. 57, 62. Cited. Id., 95, 102.
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; 8 CS 218; 14 CS 29. 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. 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. 14 CS 350. Action for divorce and one for
property conveyed in consideration of marriage are properly joined. 15 CS 78. An 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 the plaintiff who was injured thereby and it appeared in the complaint that the plaintiff was unable before trial to
determine the harm caused by the product sold by one or the other, there was proper joinder. 17 CS 32. Breach of warranty
is based "upon contract, express or implied." Id. Action against city under statute (section 13-11, now 13a-149) for defective
sidewalk and against another defendant for nuisance can be joined but claim must be in alternative. 22 CS 74; 76 (2)
Applies to a plaintiff in the singular. 22 CS 474; 23 CS 94. (7) Cited. 22 CS 474. Remedy for misjoinder of causes is taken
by demurrer. 23 CS 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 section 12-118, but misjoinder may apply
to such statutory appeals. 32 CS 140, 147, 148. Cited. 36 CS 47, 51; id., 56, 58. Cited. 38 CS 389-391.
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 subsections (1) and (7) where parties were same and causes of action arose out of same transaction.
5 Conn. Cir. Ct. 542.
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.)
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 ten dollars for any one offense.
(1949 Rev., S. 7821.)
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, and note to section 52-93. 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
this rule. 107 C. 494. One who violates rule not precluded from setting up own defenses in pleading. 124 C. 536. Cited.
218 C. 65, 84.
Cited. 18 CA 344, 349, 350, 355, 357.
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.)
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".
Cited. 63 C. 476; 145 C. 191; 146 C. 570. The practice act is liberal in respect to parties; 52 C. 235; technical rules
abolished. 81 C. 127. Same individual cannot sue as executor and as trustee, when. 60 C. 399. Several beneficiaries
unequally interested may unite to recover damages for the conversion of a single trust fund. 65 C. 556. Taxpayers appealing
from former board of relief may be joined, when. 73 C. 293. Ordinarily plaintiffs may join at will and should not be stricken
out without their consent. 72 C. 478. 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. Various certificate holders in safety fund of insurance company properly joined in
equitable action to enforce their rights. 80 C. 702. Shareholders in corporation may join in tax appeal where interests are
identical. 73 C. 288. Owners abutting on highway may join in action to prevent its obstruction. 79 C. 359. 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. Legislative policy of sections 52-101 to 52-110 is in favor of speeding justice. 154 C. 455.
Cited. 7 CA 613, 616.
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.
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.
See note to Sec. 52-97.
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.
Absence of suitable but not necessary parties no ground of error. 68 C. 157. Action for contribution by one of several
guarantors against others. 67 C. 147. Creditors of dissolved corporation should be parties to action to enforce stockholder's
liability; so administrator of dead stockholder. 78 C. 595. If one of several grantors seeks to have deed set aside, other
grantors should be joined. 79 C. 644. Where agent converts property at direction of principal, both may be joined. Id., 577.
In action to determine rights in safety fund of insurance company, the company, its directors and trustees proper parties.
80 C. 681. Legatees whose interest would be required to satisfy claim against estate are real parties in interest in action to
enforce it. 73 C. 403. Proper defendants in action involving power of trustee over land deeded away by him. 80 C. 460.
Administrator necessary party to action to charge distributees with fund converted by intestate. 83 C. 75. In action to secure
surrender of notes assigned to various parties by payee, all assignees properly joined. 77 C. 427. A single judgment may
be joint as to some and several as to others. 78 C. 604. In action by administrator to determine right to bank deposit, the
adverse claimant and the bank are proper defendants. 80 C. 421. In equity proceedings, all persons interested should be
made parties. 79 C. 653. Joining several persons who are polluting stream. 67 C. 496. 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 section 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. Cited. 172 C. 572, 575. Cited. 182 C. 1, 13. Cited. 184 C. 483, 490. Cited. 185 C. 445, 455;
Id., 583, 584. Cited. 186 C. 311, 324. Cited. 191 C. 1, 6. Cited. 212 C. 628, 631. Cited. 214 C. 1, 6, 7. P.A. 86-338 cited.
Id. Cited. 234 C. 660, 669, 670, 673. Cited. 236 C. 670, 672. Cited. 239 C. 798.
Cited. 29 CA 618, 623, 624. Cited. 32 CA 340, 349. Cited. 33 CA 714, 724. Cited. 34 CA 634, 636, 638. Cited. 35 CA
204, 208. Cited. 41 CA 62-63, 65. Cited. Id., 89, 95. Cited. 42 CA 330; judgment reversed, see 241 C. 734 et seq. Cited.
Id., 363. Cited. 43 CA 227. Cited. 46 CA 391.
Cited. 12 CS 199; 17 CS 34; 19 CS 398; 26 CS 418. 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. Plaintiff properly moved to be made a party defendant to protect its interest re foreclosure. 25 CS 516.
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. Cited. 41 CS 389, 390. Cited. 44 CS 469.
Subdiv. (2):
Cited. 233 C. 701, 722.
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. Id., 471. 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. 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, 360. Cited. 187 C. 637, 638.
Cited. 191 C. 1, 6. Cited. 207 C. 575, 577, 588. Cited. 210 C. 189, 194-196. Cited. 212 C. 138, 140. Cited. 239 C. 93.
Cited. 3 CA 100, 102. Cited. 13 CA 223, 225. Cited. 16 CA 558, 566. Cited. 17 CA 159, 164. Cited. 25 CA 360, 363.
Cited. 33 CA 714, 724. Cited. 46 CA 18. Statements made in stricken apportionment complaint cannot be used as evidential
admissions. 53 CA 373.
Cited. 26 CS 188. Statute does not apply where person is already party to action. Id., 191. Cross complaint not allowed
when based on claim different from that of principal complaint. Id. 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 (sections 52-577
and 52-584). 27 CS 46. 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 four years and four 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. 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. 27 CS 465. Cited. 33 CS 1. The purpose of this section
is to obviate a multiplicity of actions. Id., 1, 2. Cited. Id., 188. Cited. 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 the third-party defendant to the third-party plaintiff. 36 CS 134, 135. Cited. 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. (a):
Cited. 210 C. 189, 194. Cited. 225 C. 401, 418.
Cited. 3 CA 100, 102. Cited. 46 CA 18.
Cited. 40 CS 63-65.
Subsec. (b):
Cited. 13 CA 223, 228. Cited. 16 CA 558, 566. Cited. 25 CA 360, 363.
Subsec. (c):
Filing of third party complaint by original defendant does not toll running of the statute of limitations on a cause of
action between plaintiff and a third-party defendant. 21 CA 524-528. Trial court erred in strictly enforcing the twenty-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.
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 the legislation; certification to appeal was improvidently granted; appeal dismissed. 239 C. 798. P.A. 95-111 cited. Id. 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.
Cited. 46 CA 18.
Subsec. (a):
Time limitation on bringing apportionment complaint is substantive and mandatory and implicates personal jurisdiction.
269 C. 10.
Cited. 46 CA 18.
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, 6. Cited. 212 C. 628, 631.
Cited. 25 CS 315. Section may not be used by probate court appellant to become party to another's appeal. 28 CS 392.
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; 143 C. 114; 145 C. 191; 146 C. 570. 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. 191 C. 1, 6.
Cited. 10 CS 391; id., 528; 12 CS 78; id., 280; 16 CS 208. The monetary jurisdictional requirement for an action in the
superior or common pleas court is not affected by the permissible joinder of plaintiffs. 12 CS 78; 14 CS 41; 15 CS 32. 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, 58.
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.)
Cited. 123 C. 484; 125 C. 698; 145 C. 191; 154 C. 74, 79. 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. 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. Signers of one
petition used this procedure to sue signers of another petition; held sufficient. 145 C. 570. 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. This section, which permits a class action, deals only with a civil
action and cannot be applied to a proceeding under section 4-61l (46a-99), which constitutes a procedure for taking an
appeal. 165 C. 516, 520. Cited. 168 C. 212. Cited. 174 C. 606, 608. Cited. 177 C. 191, 192. Cited. 191 C. 1, 6. Cited. 192
C. 581, 583. Cited. 215 C. 224, 230.
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. Six parties are not very numerous. 13 CS 327. Cited. 25 CS 313, 315, 316, 318.
Cited. 31 CS 356. Cited. 37 CS 46, 49. Cited. 41 CS 484. Cited. 44 CS 569.
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. The incapacity of the
plaintiff to sue must be raised by the pleadings. 52 C. 233. The parties to a suit are made by the writ, not by the complaint.
72 C. 261. Cited. 62 C. 257. 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, 31. Cited. 191 C. 1, 6.
Cited. 5 CA 427, 430. Cited. 31 CA 476, 479. 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.
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; 65 C. 115; 72 C. 92; 153 C. 545. 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. This and related sections have radically changed the old practice. 63
C. 476. Taxing communities may be admitted as coplaintiffs with tax collector. 60 C. 118. Court may admit persons vitally
interested, although not necessary parties. 68 C. 157. Application to cite in receiver properly refused, if permission to sue
him has not been obtained. 66 C. 277. Street railway company, primarily liable for defect in highway, may come in as
defendant in action for injury due to it. 74 C. 163. 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. If claim assigned during suit, assignee
may be substituted as plaintiff; prima facie showing of interest sufficient. 73 C. 377. Court may permit executor to enter
in action brought by testator after time fixed by statute. 77 C. 347. Right of taxpayer to defend action against city. 81 C.
235. Discretion of court where motion has been long delayed. 69 C. 440. Process, not complaint, makes parties. 72 C. 261.
Waiver by executor who voluntarily enters to defend. 77 C. 382. 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. 172 C. 572, 575. Cited. 182 C. 1, 13. Cited. 184 C. 483, 490. Cited. 185 C.
445, 455. Cited. 186 C. 311, 324. Cited. 191 C. 1, 6. Cited. 206 C. 374, 383. Cited. 212 C. 628, 631. Cited. 215 C. 224,
230. Cited. 224 C. 263, 274. Cited. 239 C. 1. Cited. 241 C. 734.
Cited. 7 CA 613, 615. Cited. 16 CA 124, 132. Cited. 21 CA 67, 69-71. Cited. 31 CA 476, 480. Cited. 32 CA 340, 349,
350. Cited. 41 CA 89, 95. Cited. 42 CA 330; judgment reversed, see 241 C. 734 et seq.
Cited. 6 CS 281; 18 CS 106; 25 CS 315; 26 CS 418. 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.
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. Cited. 36 CS 56, 58. Cited. 41 CS 23, 25, 26. Cited. Id.,
389, 390.
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. 3 Conn. Cir. Ct. 321. 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 section 52-48a. Id.
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.
Cited. 65 C. 115; 72 C. 92; 153 C. 545. New defendants may be cited in although no cause of action exists against the
original defendants; and 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. Demurrer lies for misjoinder of plaintiff; 67 C. 277, 278. Nonjoinder discussed. 91 C. 501. Power of
court to drop party misjoined will ordinarily be exercised only on proper request. 67 C. 278. 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. Misjoined parties should be dropped
but action continued. 77 C. 423; 80 C. 702. 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. 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. Plaintiff should not be dropped
on motion of defendant, without a hearing. 72 C. 472. Party liable over in case of judgment may come in as defendant. 74
C. 163. 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. Statute embraces a case where one
having a right to become a party adopts a wrong procedure to do so. 91 C. 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. See note to section 52-107. Where subject matter of action was transferred during pendency of
action, proper to join transferee as party plaintiff. 123 C. 376. Cited. 172 C. 572, 575. Cited. 182 C. 1, 13. Cited. 184 C.
483, 490. Cited. 185 C. 445, 455. Cited. 186 C. 311, 324. Cited. 187 C. 187, 192. Cited. 191 C. 1, 6. Cited. 212 C. 628,
635. Cited. 233 C. 701, 721.
Cited. 22 CA 114, 117. Cited. 27 CA 199, 202. Cited. 31 CA 80, 84. Cited. Id., 476, 484. Cited. 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; 15 CS 12; 26 CS 418. No action should be defeated on this technical ground unless it makes the
rendition of a proper judgment impossible. 4 CS 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. Court in its discretion has authority to drop misjoined parties. 16 CS 212.
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.)
Cited. 65 C. 115; 72 C. 261. 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. Where conservator brings action in his own name, and
ward dies, his administrator may enter. 91 C. 680. See notes to sections 52-107, 52-108. Cited. 179 C. 246, 247.
Cited. 1 CA 99, 101. Cited. 25 CA 751, 760. Cited. 31 CA 80, 84. Cited. Id., 476, 484. Cited. 33 CA 365, 367.
Cited. 18 CS 446.
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. See note to section 52-107.
Cited. 25 CA 251, 253. Cited. 41 CA 754, 755.
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. See note to section 52-108.
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.
Cited. 61 C. 227; 117 C. 637. A writ against three as partners can be amended by adding a fourth. 32 C. 106. There can
be no amendment by adding new names if only one was in the original writ. 24 C. 14. The court may extend the time for
amending. 19 C. 62. But plaintiff may sue partners in individual names instead of by partnership name. 103 C. 445. Cited.
192 C. 497, 501-503. Cited. 194 C. 144, 159.
Cited. 4 CA 339, 344, 347.
Sec. 52-113. Common counts; bill of particulars. Section 52-113 is repealed.
(1949 Rev., S. 7835; P.A. 78-379, S. 26, 27.)
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 sections 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 this 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. 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 this statute. 133 C. 590. Cited. 134
C. 692; 137 C. 551; 138 C. 313; id., 381; id., 508; 139 C. 228; id., 350; id., 527; 140 C. 274; id., 319; 141 C. 250; 142 C.
521; 148 C. 447. If defendant offers no evidence or fails to prove by a fair preponderance of evidence that plaintiff was
negligent, the plaintiff is entitled to prevail. 136 C. 171. Court may disregard evidence offered by defendant or hold it
insufficient to sustain burden. Id., 550. Defendant must plead and prove contributory negligence. 138 C. 557. No contributory negligence as matter of law under circumstances. 138 C. 712. Burden of proof as to contributory negligence rests
throughout on defendant. 145 C. 146. 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. Cited. 174 C. 200, 202, 203. Cited. 179 C. 406, 414. Cited. 188 C. 607, 614, 615. Cited. 217 C. 12, 23. Cited.
225 C. 637, 639, 649, 650.
Application to specific facts: 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.
Application of statute in automobile collision case. 147 C. 540.
Cited. 11 CA 1, 4, 7. Cited. Id., 348, 353. Cited. 15 CA 668, 675. Cited. 17 CA 268, 271, 272. Cited. 29 CA 552, 556,
557. Cited. Id., 791, 797. Cited. 33 CA 714, 719, 720. Cited. 43 CA 294.
Cited. 4 CS 224; 8 CS 110; 12 CS 239; 21 CS 282; 23 CS 132; id., 134. Where plaintiff alleged that she exercised due
care, she assumed the burden of proof on that issue and this 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 a 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, the plaintiff was not required to so plead. 20 CS 382. In suit brought against municipal
employee under section 7-465, burden of alleging and proving contributory negligence remains with employee in accordance with this section. 23 CS 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, the 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 section 7-465, which imposes indemnification liability on municipality. 28 CS 506, 507-509. Cited. 29 CS 75. Cited. 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.
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.)
Sec. 52-116. Transferred to Chapter 897, Sec. 52-73a.
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.
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 this 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. Omission of statutory averment is a formal defect of pleading. 71 C. 616. A "bona fide
owner" defined. 72 C. 703. Cited. 65 C. 115. Assignee may sue under this section or at common law, in assignor's name.
72 C. 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. As to waiving lack of allegation, see 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. See note to section 52-131. 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.
122 C. 588. 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. Id. 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,
466, 468-473.
Cited. 5 CA 427, 430.
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.
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. 52-190 re actions upon probate bonds and required endorsement of writ.
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. See notes to sections 52-80, 52-84. 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, 226. Cited. 188
C. 145, 150.
Judgment on the pleadings not proper in absence of responsive pleading by plaintiff to special defense. 24 CS 494.
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.
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, 609.
Cited. 39 CA 306, 332.
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; 21 CS 352. 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. Inapplicable to motions for disclosure of defense and judgment. 32 CS 581.
Subsec. (a):
Cited. 22 CA 4, 8. Cited. 39 CA 306, 332. 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 two
years after the return date. 78 CA 590.
Subsec. (c):
Cited. 39 CA 306, 332.
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 section 52-129; P.A. 81-410 deleted reference to section 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. Quo warranto. 55 C. 121. Summary process. 131 C. 531.
Cited. 54 C. 319; 66 C. 512; 69 C. 22; id., 498; 104 C. 294; 134 C. 435. Cited. 217 C. 52, 62, 63.
Listed sections have nothing to do with appellate procedure. 15 CS 273. Cited. 17 CS 34. Cited. 36 CS 47, 50, 51.
Cited. 38 CS 389, 391.
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.)
This 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. A defendant in an action on contract may plead in abatement the want of service on codefendant.
45 C. 477; but see now section 52-108; 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. See note to section 52-91. 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. Cited. 178 C. 472, 478. Cited. 211 C. 78, 85. Limited in application to
defects in the writ. Id., 431, 433-435. Provides relief from defects in texts of writs such as designations of transportation
commissioner as transportation commission. 212 C. 381, 386. Cited. 217 C. 520, 527. Designation of department of
transportation in the summons rather than the commissioner is a misnomer falling within purview of the statute. 228 C.
343, 350, 353. "Circumstantial error" discussed. 232 C. 392, 395-401. Purpose of section is to afford relief from defects
found in text of writ itself. 268 C. 541.
Cited. 3 CA 566, 568. Cited. 5 CA 540, 546. Cited. 23 CA 188, 191. Cited. 31 CA 260, 264. 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.
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 this section does not save from a demurrer a plea in abatement which fails to pray for judgment.
34 CS 251, 253. Cited. 38 CS 712, 717.
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.
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.)
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.
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.
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 thirty days of court to
which action is returnable, substituting it be within first thirty days after return day.
Statutes allowing amendments to be liberally construed; 32 C. 108; 39 C. 535; 75 C. 541; apply in United States 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
the 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. See note to section 52-131.
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; but, as to equitable action. 76 C. 292.
Amendment to avoid variance allowable, when. 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. See
section 52-131. 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 thirty 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 two
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, original pleading drops out of case, when. 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 this 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. 109 C. 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; 147 C. 153. 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. 145 C. 579. Amended complaint may or may
not have the effect of stating a new cause of action. Id. Cited. 173 C. 408, 410, 412, 413. Cited. 187 C. 180, 185. Cited.
191 C. 201, 202, 205, 207. 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, 562-564. Cited. 205 C. 413, 416, 419.
Cited. 5 CA 101, 103. Cited. 19 CA 203, 206. Cited. 23 CA 188, 191. Because plaintiff may amend "any defect, mistake
or informality" of a pleading within thirty 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 the 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, the 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, 717.
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.
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.)
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.
See Sec. 52-190 re actions on probate bonds and required endorsement of writs.
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. 41 C. 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. 74 C.
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 two 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; And see note to section 52-128. 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. 144 C.
582. Denial of amendment to conform allegations to proof. 144 C. 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, 206. Cited. 187 C. 180, 185. Cited. 192 C. 558, 563. Cited. 215 C. 286,
289-291. Cited. 221 C. 14, 24. Cited. Id., 356, 364.
Cited. 19 CA 280, 282.
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, 129.
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; see note to section 52-128. 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.
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.)
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.
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. 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. 60 C. 500; 66 C. 500. Court may in its discretion allow the filing of amendments to pleadings before,
during and after trial. 135 C. 170.
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.
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.
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. 28 C. 120. Demand in plea for judgment for defendant. 28 C. 120.
In a suit upon a partnership claim, the 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. This 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. 108 C. 499. This statute is not exclusive in its scope. Id. 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. 130 C. 210. Condition precedent to legal set-off is that it shall be in answer to suit on a debt. Id. Cited.
191 C. 104, 108.
Cited. 6 CA 106, 109. Cited. Id., 417, 426. Cited. 12 CA 353, 354, 362. Cited. 15 CA 362, 364, 365. Cited. 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.
Subsec. (a):
Cited. 207 C. 483, 493.
Cited. 40 CA 536, 541. Cited. 44 CA 759.
Subsec. (c):
Cited. 40 CA 536, 541.
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.)
See note to Sec. 52-139.
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. 225 C. 146, 147, 149, 152, 156, 159.
Cited. 26 CA 322, 324, 326.
Cited. 5 CS 146.
Subsec. (b):
Subdiv. (4) cited. 221 C. 912, 913. Subdiv. (4) cited. 225 C. 146, 152, 153, 156-161. Subdiv. (4) cited. 233 C. 460, 472.
Cited. 26 CA 322-324.