3 Conn. Cir. Ct. 393 | Conn. App. Ct. | 1965
This action on the common counts was instituted on September 5, 1964, and was made returnable to the Circuit Court on the fourth Tuesday of September, 1964. Service of the writ was made on the defendant, Design Productioneering Corporation, on September 9, 1964, by “leaving a true and attested copy . . . [of the writ] with and in the hands of John Demarest, vice president
“The power of a court to open a judgment upon default is controlled by § 52-212 of the General Statutes, which provides that any judgment rendered upon default may be set aside within four months upon the complaint or written motion of any person ‘prejudiced thereby, showing reasonable cause, or that a good defense in whole or in part existed at the time of the rendition of such judgment . . . and that the defendant was prevented by mistake, accident or other reasonable cause from appearing to make the same.’ ” Lundborg v. Salvatore, 148 Conn. 435, 438; see Practice Book § 286; Automotive Twins, Inc. v. Klein, 138 Conn. 28, 34. “A motion to vacate or set aside a judgment is addressed to the sound legal discretion of the trial court on the particular facts of the case, and its action in the
When the writ was served on Demarest, the corporation was in the process of moving its factory and offices from its then location to another location in Bridgeport. Demarest turned the writ over to an employee of the corporation who placed it in a carton along with other papers. No further action was taken as to the lawsuit. The trial court found that Demarest was an intelligent business man who knew the significance and consequences of the action which had been instituted against the defendant but nevertheless “chose to ignore the . . . suit” and showed an “indifference to the action.” It was undisputed that the defendant had full and ample notice of the litigation, and the court so found. The court also found that “[t]here was no fraud, unfair dealing or misconduct on the part of the plaintiff or plaintiff’s counsel leading to the entry of the default and the judgment entered after the default.”
The defendant says that in the process of moving the plant and offices, which commenced in the latter part of August and was not completed until November, 1964, “files and papers were in a confused state and files were emptied into boxes.” “A party to a suit in court must give it the care and attention which a man of ordinary prudence usually bestows upon his important business. If he fails to do so he cannot obtain relief from a judgment resulting from
As for the amendment to the motion, the defendant did not allege therein, nor does it appear therefrom, that it did not know the “true nature and basis of the claim,” nor was it shown that the defendant was either prejudiced or misled by the condition of the pleadings. “A judgment will not be set aside . . . for . . . omissions, or irregularities in the process, not affecting the jurisdiction, especially where defendant had actual notice of the commencement of the action . . . .” 49 C.J.S. 616, Judgments, § 334. While it is true that the statement of account might have contained more detailed data, the defendant was in no manner misled to its prejudice by reason thereof. See Faure v. Drollinger, 60 Cal. App. 594, 596. “Under these circumstances, even if every other claim of the defendant had been supported, the trial court did not exceed the limits of judicial discretion in refusing to open the default.”
There is no error.
In this opinion Kosicki and Dearington, Js., concurred.
The officer’s return, the trial court’s memorandum of decision and the finding all refer to John Demarest as the vice president of the defendant corporation; however, in the transcript (p. 8), Demarest testified that he had been the president of the corporation “since July 1st of last year.”