Mortgage Electronic Systems v. Jazina, No. Cv 02 0172394 (Feb. 14, 2003) , 2003 Conn. Super. Ct. 2262 ( 2003 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON MOTION TO DISMISS This forclosure action was commenced by service of process on the first named defendant James Jazina at 35 Ward Street, Naugatuck, Connecticut, on June 25, 2002. The State Marshal making service indicated that Mr. Jazina was served by abode service at that address.

On July 10, 2002, the day after the return date, the attorney for James Jazina filed an appearance on Jazina's behalf. Also on July 10, 2002, Jazina's attorney filed an answer and special defense to the foreclosure action.

Then on August 13, 2002, Jazina's counsel filed a Motion to Dismiss, alleging insufficiency of service of process, in that 35 Ward Street, Naugatuck, was not, in fact, the abode of the defendant on the date service of process was made. The plaintiff Mortgage Electronic Registration System, Inc., opposes dismissal on the grounds that the Motion to Dismiss is untimely.

Connecticut Practice Book § 10-6 sets the order of pleading: a motion to dismiss filed by the defendant is the next paper to follow the complaint. Connecticut Practice Book § 10-7 provides that the filing of a subsequent pleading in the order of pleading "will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in [Prac. Book § 10-6]."

The defendant filed such a subsequent pleading — his answer and special defense — on July 10. By so doing he waived the right to file any preceding pleading in the order of pleading, including the instant Motion to Dismiss. The court has not granted leave in this case to vary the order of pleading.

Accordingly, the defendant's Motion to Dismiss, filed out of time, is denied.

Patty Jenkins Pittman, Judge CT Page 2263

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