Fox v. English , 7 Conn. Supp. 499 ( 1939 )

On November 20, 1939, Charles J. Fox presented his petition to the undersigned praying that he be declared elected as a selectman of the Town of Greenwich. An order for a hearing having been made, a citation was issued, summoning Thomas J. English, Wilbur M. Peck and Otto Klumpp to appear on November 28th to show cause why the petition should not be granted. These three are those whom the moderator declared elected as selectmen at the election from which springs this controversy.

On the appointed day the parties appeared and the respondents filed a demurrer to the action. After an informal conference with the undersigned, counsel consented to the filing of certain amendments to the petition, with the understanding that, though they were to be filed subsequent to the demurrer, the trier should consider them a part of the petition to which the demurrer was addressed.

In the form it now assumes, the petition alleges, among many other facts, the following, which the demurrer admits. On October 2, 1939, the Town of Greenwich held a biennial election for the purpose of electing four selectmen and other town officers. Although the petitioner received the fourth largest number of votes as selectman, the moderator declared but the three respondents elected.

The demurrer completely ignores the right which the petitioner would appear to possess under the foregoing admissions. It is not necessary, then, to decide the legal questions which the respondents seek to present at this time. Where a petition sets forth two causes of action and a demurrer, which may be good as to one, is addressed to the petition generally, it must be overruled.Cashman vs. Meriden Hospital, 117 Conn. 585.

Whether the proper parties have been named as respondents for the cause of action which requires the overruling of the demurrer is a question not raised and hence remains undetermined.

The demurrer is overruled.