Covitt v. City of Bridgeport

2 Conn. Super. Ct. 16, 2 Conn. Supp. 16, 1935 Conn. Super. LEXIS 182

Opinion

BOOTH (JOHN RUFUS), J.

The second count in the substituted complaint is in the form known as the common counts and follows a special count. Under the Practice Act, the form known as “the common counts” can be used only for the commencement of an action. It can never follow a special count. (McNamara vs. McDonald, 69 Conn. 484 at 492.)

It is obvious that the aforesaid second count is improperly filed and is therefore subject to a motion to strike out in accordance with Practice Book section 61 * .

While paragraphs 5 and 13 of the first count contain some evidential matter, these paragraphs also contain allegations of fact which appear to be properly pleaded and, therefore, should not be eliminated from the complaint even if attacked by a proper motion.

In view of the foregoing paragraph 1 of the present motion is granted and paragraphs 2 and 3 thereof are denied.

* Practice Book, Sec. 61. “When any pleading or motion is sham, or frivolous, or improperly filed, or unfit by reason of its indecent' or scandalous allegations to become part of the record, it may be stricken ou't on written motion. The motion to strike out shall not be used except as provided herein.”