Kingston, Appeal From Doings of Commissioners

Connecticut Superior Court

Kingston, Appeal From Doings of Commissioners

15 Conn. Super. Ct. 34, 15 Conn. Supp. 34, 1947 Conn. Super. LEXIS 40

CourtConnecticut Superior Court

DecidedApril 22, 1947

DocketFile 68543

StatusPublished

Cited by1 cases

This text of 15 Conn. Super. Ct. 34 (Kingston, Appeal From Doings of Commissioners) is published on Counsel Stack Legal Research, covering Connecticut Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kingston, Appeal From Doings of Commissioners, 15 Conn. Super. Ct. 34, 15 Conn. Supp. 34, 1947 Conn. Super. LEXIS 40 (Colo. Ct. App. 1947).

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Opinion

ROBERTS, J.

The appellant’s motion to expunge filed April 9, 1947, is addressed to the statement of claim on appeal from commissioners filed by the appellees March 12, 1947. Said statement of claim was filed pursrant to § 90 of the Practice Book.

Section 90 provides in part that “To such statement the adverse party, . . . shall plead, and thereafter the pleadings dhall continue until issues are joined as in civil actions.” The motion to expunge was filed April 9, 1947, after the filing of the motion for judgment by default by the appellees on April 8, 1947. It appears that some twenty-seven days had expired between the *35 filing of said statement of claim and the motion to expunge, which would be beyond the time allowed for the filing of such a pleading pursuant to § 86 of the Practice Book. Therefore said motion to expunge was not filed in time, even considering § 5534 of the Genral Statutes in conjunction with said § 86.

An amendment of claim is allowed before the Superior Court on appeal provided it does not change the ground of action. General Satutes § 5544. “Great latitude is allowed to the discretion of the court in permitting amendments of and additions to the first statement by a plaintiff of his claim.” Huntington’s Appeal, 73 Conn. 582, 585. The trial in the Superior Court in an appeal of this kind is wholly a trial de novo. Amendments in this type of action are to be liberally expounded. Cothren’s Appeal from Commissioners, 59 Conn. 545, 548; Donahue’s Appeal from Commissioners, 62 Conn. 370, 373, citing Bulkley v. Andrews, 39 Conn. 523, 535.

In the opinion of the court, in view of the liberal amendments allowed as indicated by the above cases, the portions of the statement of claim sought to be expunged do not change the ground of action so as to make the subject to the motion to expunge. Technicalities of pleading in proceedings before the commissioners are not necessary, and it would therefore follow that this court should also be liberal and not technical in such actions. Mead’s Appeal from Probate, 46 Conn. 417, 429. Although it may appear that the matters covered in the motion to expunge are in some degrees irrelevant, immaterial, or evidential, they are not so entirely irrelevant, immaterial or evidential as to be subject to a motion to expunge. They are matters that can be excluded, if not entirely proper, at the time of trial of the issues in this case. Donovan v. Davis, 85 Conn. 394, 398.

Motions to expunge are not favored in the ordinary case, if the allegations sought to be expunged tend to more fully state the plaintiff’s claim. This would be especially true in the instant case, as much lattude is allowed in the statement of claims in appeals from commissoners. Bitello v. Lipson, 80 Conn. 497, 503; LaFrance v. LaFrance, 127 Conn. 149, 153; L. & E. Wertheimer, Inc. v. Wehle-Hartford Co., 126 Conn. 30, 36.

Because of the foregoing reasons it would appear that the motion should be denied.

The motion to expunge is denied.

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ROBERTS, J.

The appellant’s motion to expunge filed April 9, 1947, is addressed to the statement of claim on appeal from commissioners filed by the appellees March 12, 1947. Said statement of claim was filed pursrant to § 90 of the Practice Book.

Section 90 provides in part that “To such statement the adverse party, . . . shall plead, and thereafter the pleadings dhall continue until issues are joined as in civil actions.” The motion to expunge was filed April 9, 1947, after the filing of the motion for judgment by default by the appellees on April 8, 1947. It appears that some twenty-seven days had expired between the *35 filing of said statement of claim and the motion to expunge, which would be beyond the time allowed for the filing of such a pleading pursuant to § 86 of the Practice Book. Therefore said motion to expunge was not filed in time, even considering § 5534 of the Genral Statutes in conjunction with said § 86.

An amendment of claim is allowed before the Superior Court on appeal provided it does not change the ground of action. General Satutes § 5544. “Great latitude is allowed to the discretion of the court in permitting amendments of and additions to the first statement by a plaintiff of his claim.” Huntington’s Appeal, 73 Conn. 582, 585. The trial in the Superior Court in an appeal of this kind is wholly a trial de novo. Amendments in this type of action are to be liberally expounded. Cothren’s Appeal from Commissioners, 59 Conn. 545, 548; Donahue’s Appeal from Commissioners, 62 Conn. 370, 373, citing Bulkley v. Andrews, 39 Conn. 523, 535.

In the opinion of the court, in view of the liberal amendments allowed as indicated by the above cases, the portions of the statement of claim sought to be expunged do not change the ground of action so as to make the subject to the motion to expunge. Technicalities of pleading in proceedings before the commissioners are not necessary, and it would therefore follow that this court should also be liberal and not technical in such actions. Mead’s Appeal from Probate, 46 Conn. 417, 429. Although it may appear that the matters covered in the motion to expunge are in some degrees irrelevant, immaterial, or evidential, they are not so entirely irrelevant, immaterial or evidential as to be subject to a motion to expunge. They are matters that can be excluded, if not entirely proper, at the time of trial of the issues in this case. Donovan v. Davis, 85 Conn. 394, 398.

Motions to expunge are not favored in the ordinary case, if the allegations sought to be expunged tend to more fully state the plaintiff’s claim. This would be especially true in the instant case, as much lattude is allowed in the statement of claims in appeals from commissoners. Bitello v. Lipson, 80 Conn. 497, 503; LaFrance v. LaFrance, 127 Conn. 149, 153; L. & E. Wertheimer, Inc. v. Wehle-Hartford Co., 126 Conn. 30, 36.

Because of the foregoing reasons it would appear that the motion should be denied.

The motion to expunge is denied.

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15 Conn. Super. Ct. 34, 15 Conn. Supp. 34, 1947 Conn. Super. LEXIS 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kingston-appeal-from-doings-of-commissioners-connsuperct-1947.

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