275 A.2d 608 | Conn. Super. Ct. | 1971
By writ, summons and complaint dated February 17, 1970, served on the two defendants on February 19, 1970, and returned to this court on the first Tuesday of April, 1970, the designated plaintiff therein, Pasquale Cofrancesco, brought the within action to recover damages for the death, on February 18, 1969, of Sue Ann Cofrancesco, who, while crossing a certain highway in Bethany on the afternoon of that day, was allegedly struck by a car owned by the defendant husband and being operated negligently by the defendant wife. Paragraph 1 of the complaint in its original form alleges, among other things, that the decedent *140 died leaving no will, being survived by the plaintiff, her father, and by her mother, as sole heirs; that no estate up to that time had been opened but that the plaintiff had made application to be appointed administrator by the Probate Court for the district of Bethany. By an amendment filed April 8, 1970, dated the preceding day, the originally designated plaintiff filed an amendment to the writ, summons and complaint by substituting the name of "Pasquale Cofrancesco, Administrator of the Estate of Sue Ann Cofrancesco," as plaintiff, and substituting another paragraph in lieu of paragraph 1 of the complaint in its original form. The substituted paragraph is patterned upon the original paragraph 1 with the exception of the concluding words, which read: "[O]n February 27, 1970, Pasquale Cofrancesco was appointed Administrator of the Estate of Sue Ann Cofrancesco in the Probate Court, District of Bethany, State of Connecticut."
The defendants move to erase the action from the docket upon the grounds recited in their motion as on file. Basically, the stated grounds challenge the jurisdiction of the court over the cause of action. "Jurisdiction is the power in a court to hear and determine the cause of action presented to it. Jurisdiction must exist in three particulars: the subject matter of the case, the parties, and the process."Brown v. Cato,
The question of jurisdiction raised by the motion to erase under consideration relates to subject matter. The Connecticut rule is that a motion to erase from the docket will be granted only when it clearly appears on the face of the record that the court is without jurisdiction. Such a motion admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. Brown
v. Cato, supra, 419, and cases cited. "[T]he question, *141
once raised, must be disposed of no matter in what form it is presented." Carten v. Carten,
the originally designated plaintiff was Pasquale Cofrancesco, father of the decedent, who lost her life on February 18, 1969, when allegedly struck on the afternoon of that day by a car owned by the defendant husband and being operated negligently by the defendant wife. As party plaintiff in the originally instituted action, Pasquale Cofrancesco asked damages in the amount of $150,000 for the decedent's death. The original writ, summons and complaint, as disclosed by the officer's return, were served on February 19, 1970, a year and one day after the fatality. The amendment to the original writ, summons and complaint, filed April 8, 1970, within thirty days after return day, recites that the appointment of the originally designated plaintiff as administrator by the Probate Court was on February 27, 1970, being a year and nine days after the decedent's death. Here in Connecticut, an action is regarded as having been brought on the date of service on the defendant. Consolidated Motor Lines,Inc. v. M M Transportation Co.,
"Death, at common law, is not a recoverable element of damage." Foran v. Carangelo,
The writ, summons and complaint as originally drawn were a nullity in that they stated no cause of action recognized in Connecticut. That paragraph 1 of the complaint in its original form alleges that the plaintiff had made application to be appointed administrator in no sense cured the nullity of the initially alleged cause of action.
Did the subsequent amendment of April 8, 1970, in which it is made to appear that on February 27, 1970, the originally designated plaintiff was appointed *143 administrator of the estate by the Probate Court, cure the nullity of the initially alleged cause of action? The court thinks not.
While an amendment to a complaint relates back in time to the institution of the action for some purposes, it does not do so when it sets up a new and different cause of action. Kelsall v. Kelsall,
As already pointed out, the writ, summons and complaint as originally drawn were a nullity. The amendment seeks to cure the initial nullity by setting up a new and different cause of action under the statute. Hence the amendment speaks as of the date when filed. Viewed from this standpoint, the cause of action now attempted to be asserted does not meet the limitation of the statute as to the one-year requirement. It speaks from the date of its filing, namely, April 8, 1970. A statutory cause of action for the death of the decedent arose on February 18, 1969, the date of the fatality being more than thirteen months before April 8, 1970. Service of the defective cause of action constituting a nullity was made upon the defendants on February 19, 1970, a year and a day after the death of the decedent. Since the Connecticut death statute (§
The plaintiff relies heavily upon the majority opinion of the Supreme Court of Rhode Island inTillinghast v. Maggs,
In view of all of the foregoing, the motion of the defendants to erase the action from the docket of this court for want of jurisdiction over the subject matter, as appears on the record, is required to be, *145 and is, granted. The result reached is painful to this judge as the trial court. It is not the function of a trial court to make new law — that is the function of the legislature and appellate courts — but to follow and apply existing principles and precepts to the problems at hand.
In view of the within disposition, it is not necessary to consider the motion of the defendants to expunge the amendment dated April 7, 1970, and filed on the following day. The motion to erase and the motion to expunge filed by the defendants were both dated and filed on December 11, 1970. The within ruling granting the motion to erase dispenses with a consideration of the motion to expunge. The latter motion would have been granted but for the outcome of the motion to erase.
Judgment may enter, pursuant to the second preceding paragraph of this memorandum, erasing the action from the docket of this court for want of jurisdiction over the subject matter, as appears on the record.