Balsamo v. Verdi

9 Conn. Super. Ct. 402, 9 Conn. Supp. 402, 1941 Conn. Super. LEXIS 106

Opinion

KING, J.

Under date of May 23, 1941, permission was granted to the defendants to file a cross complaint in this action. This motion was dated May 13th and quite properly contained a cross complaint such as was proposed to be filed. The plaintiffs demurred to the cross complaint. The motion of May 23, 1941, was as follows: “The above named defendants respectfully move for leave to file cross complaint in the above entitled action as hereinafter set forth.

Cross Complaint [form of proposed cross complaint]”

From this it will be seen that in fact no cross complaint has been filed, although permission to file one was granted. Permission to file a proposed amendment, although granted, does not constitute the actual filing of an amendment which will support a judgment.

In view of the clear language of our Supreme Court, it does not seem that the demurrer to this nonexistent pleading could be sustained on any theory, even on the basis of the apparent acquiescence of all parties in treating the proposed cross complaint included in the motion for permission to file as the equivalent of an actual cross complaint. Motiejaitis vs. John son, 117 Conn. 631, 638; vol. A-45 Conn. Supreme Court Records and Briefs, opp. page 256, opp. page 257; Practice Book [1934] §93.

For the foregoing reasons the demurrer to the “Cross Complaint” is overruled.