426 A.2d 1329 | Conn. Super. Ct. | 1980
The defendant has appealed from a judgment for the plaintiff in a paternity action, raising six issues in his brief. He claims that the court erred in denying his motion to dismiss, his motion for a nonsuit, his motion for a directed verdict, and his motion for a new trial. He also claims that the court erred in failing to find that the paternity statutes are not in compliance with
The trial court based its denial of the motion to dismiss on State v. Muolo,
we will deal first with the motion for a new trial. This motion was based on the inability of the defendant to present an adequate defense because of the failure of the commissioner of welfare to appear at the trial in response to a subpoena issued by the defendant. The claim that the presence of the commissioner was necessary for the presentation of the defense was never made at the trial. The transcript reveals that the only claim made during the trial was that the presence of the commissioner was required in order for the defendant to put on the motion to dismiss. The defendant also failed to present to the trial court any evidence that the subpoena had been served. The defendant could have moved for a continuance on account of the absence of a material witness, pursuant to Practice Book 280. Since he failed to do so, the trial court was correct in denying his motion for a new trial.
The trial court was also correct in denying the motion for a directed verdict. This motion was brought improperly. Such a motion is appropriate for jury trials only, and should be made after the presentation of evidence by both parties, but before the arguments begin. Practice Book, 1978, 321; Haag v. Beard Sand and Gravel Co.,
The motion for nonsuit was based on Practice Book 351. This section states that a party may be nonsuited if he "fails to comply with an order of court or a citation to appear or fails without proper excuse to appear for trial." The defendant's argument is that the commissioner was the real party in interest, and his failure to respond to the subpoena was a failure to comply with an order or citation of the court. A subpoena is a method for compelling the attendance of a witness, but it is not an order or citation of the court. As discussed above, the necessity of having the commissioner present for the presentation of the defense was never raised at the trial. The court did not err in denying the defendant's motion for nonsuit.
There is no error.
In this opinion SHEA and BIELUCH, Js., concurred.