Mitchell v. Smith , 74 Conn. 125 ( 1901 )

Pleas in abatement must be filed on or before the opening of the court on the day following the return day of the writ. Rules of Court, p. 13, § 12. Ignorance of a cause of abatement will not justify filing a plea after the time limited. Huntley v. Holt, 59 Conn. 102, 105. The plea cannot be amended after the time for filing has expired, except by leave of court. Granting such leave is a matter of discretion, never to be exercised favorably unless an allowance of the amendment would really serve the ends of justice. Brockett v. Fair Haven W. R. Co., 73 Conn. 428,431. Ordinarily, when the allowance of any amendment is within the discretion of the trial court, its action will not be reviewed; and in those instances where it may be reviewed, an order of disallowance will not be set aside unless this court is of opinion that the amendment should have been allowed.Moran v. Bentley, 71 Conn. 623, 628, 629.

Assuming that the action of the trial court in the present instance may be reviewed, we are not of opinion that the amendment should have been allowed. The reason of our very liberal and broad statute permitting amendments of pleadings at any stage of the trial is, that a party may fail to state the real ground that will save him in his cause, and that the amendment will serve to settle the cause on its actual merits; such reason does not generally apply to amendments of pleas in abatement, and clearly not to the one now before us. The settled and salutary rule which requires courts to show little favor to pleas in abatement, will often forbid an amendment which might properly be allowed if offered in the case of a plea to the merits. Esdaile v. Lund, 12 Mees. Wels. 606, 614. The instances are few where the court can properly allow an amendment to a plea in abatement, unless the matter so pleaded might also be pleaded in bar.

In the present case the defendant's plea sets up a doubtful and harmless informality in the certificate of the magistrate issuing the writ, and a clerical error of the officer who served it, in copying the original writ, by which the copy named the return day as the first Tuesday in April instead of the first Tuesday in May. Either return day is in law a proper one, and the defendant was not in fact deceived, but appeared as required by the writ. She has lost nothing by the informality, nor by the mistake alleged. The plea did not contain a prayer for judgment, and for this reason was undoubtedly bad.Coughlin v. McElroy, 72 Conn. 444, 448. After the plaintiff had demurred because there was no prayer for judgment, and because the grounds alleged were insufficient to abate the writ, the defendant asked permission to amend her plea by stating a prayer for judgment.

It is patent that to allow this amendment (which the defendant has no right to make) for the sole purpose of preventing the court from determining on its merits a cause properly before it, cannot really serve the ends of justice.

The trial court based its decision on these grounds: (1) That it had no power to permit such an amendment; (2) that pleas in abatement were not favored; and (3) that the want of a prayer for judgment was a defect of substance and therefore not amendable. The defendant excepted generally to this ruling and decision. The second ground being sound, a general exception to all was insufficient to support the appeal. The first and second reasons of appeal are insufficient. The third reason of appeal is immaterial.

When the original answer was held insufficient, the defendant might either have declined to answer over or have moved for leave to amend. Instead of this, she filed a new answer which was simply a general denial, and went to trial upon it. This waived any right thereafter to except to the ruling upon her first answer. When a demurrer is overruled, and the party demurring pleads over, he retains his right of appeal. Hunter's Appeal, 71 Conn. 189, 198. But if a pleading to which a demurrer is sustained is voluntarily replaced by another, the substituted answer takes the place of the original one, which thereafter (unless the substitution was required by the order of the trial court) drops out of the case as fully as does a complaint for which another is substituted. Goodrich v. Stanton, 71 Conn. 418, 424; Boland v. O'Neil, 72 id. 217.

There is no error.

In this opinion the other judges concurred.