Palmenta v. Cavagna, No. 32 73 29 (Aug. 29, 1997) , 1997 Conn. Super. Ct. 9775 ( 1997 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION ON MOTION TO DISMISS, NO. 101 The plaintiff's motion for appeal from probate was not returned to the Superior Court at least six days prior to the return day as required by General Statutes § 52-46a. General Statutes § 52-46a applies to probate appeals because "[f]or purposes of mesne process, a probate appeal is considered a civil action." Bergin v. Bergin, 3 Conn. App. 566, 568, 490 A.2d 543, cert. denied, 196 Conn. 806, 494 A.2d 904 (1985). General Statutes § 52-46a "is mandatory and failure to comply with its requirements as to the time when process shall be served renders the proceeding voidable and subject to abatement."Rogozinski v. American Food Service Equipment Corporation,211 Conn. 431, 433, 559 A.2d 1110 (1989). Voidable means able to be declared void at the defendant's option. See Bergin v. Bergin, supra, 3 Conn. App. 569. The defendant, by filing a timely motion to dismiss, has chosen not to waive this defect. The return date was specified as March 25, 1997, and the motion for appeal from probate was filed with the court on March 24, 1997. Therefore, the defendant's motion to dismiss is granted.

Grogins, J.