160 Conn. 133 | Conn. | 1970
The pertinent chronology of this case is as follows: On November 15, 1968, the defendant labor commissioner informed the plaintiff Good Humor Corporation that he would inspect its books and records on December 9, 1968, in order to determine if the plaintiff corporation was complying with General Statutes §§ 31-76b—31-76j, which require the payment of wages for overtime work. On November 25, 1968, the plaintiff corporation and Henry W. Michaud, Sr., an employee, instituted an equitable action seeking to enjoin the defendant from making the inspection. On December 16, 1968, before the return day, the court issued a temporary injunction restraining the defendant from making his inspection until further order of the court. On February 3, 1969, the plaintiffs amended their complaint, which we hereinafter refer to as the original complaint. On March 20, 1969, the defendant demurred to this amended complaint on the ground that the plaintiffs had an adequate remedy at law.
In their first assignment of error, the plaintiffs seek to have us decide that the demurrer to their original complaint was improperly sustained. This we cannot do. Upon the sustaining of a demurrer the losing party may take one of two courses of action. He may amend his pleading, or he may stand on his original pleading, allow judgment to be rendered against him, and appeal the sustaining of the demurrer. Manghue v. Reaney, 99 Conn. 662, 663, 122 A. 566; 1 Stephenson, Conn. Civ. Proc. (2d Ed.) § 119 (d). The choices are mutually exclusive. The filing of an amended pleading operates as a waiver of the right to claim that there was error in the sustaining of the demurrer to the original pleading. Grady v. Kennedy, 145 Conn. 579, 584, 145 A.2d 124; Allen v. Chase, 81 Conn. 474, 475, 71 A. 367; Pettus v. Gault, 81 Conn. 415, 418-19, 71 A. 509; Arnold v. Kutinsky, 80 Conn. 549, 552, 69 A. 350; Sidney Novelty Co. v. Hanlon, 79 Conn. 79, 80, 63 A. 727; Burke v. Wright, 75 Conn. 641, 643, 55 A.
The rule is a sound one, as it serves to prevent the prolongation of litigation. The instant case is an example of the soundness of the rule. Here, the plaintiffs chose to amend their complaint, but that
We will now consider whether the court erred in sustaining the defendant’s motion to expunge the amended complaint. Such a motion is proper to attack an amended complaint after a demurrer has been sustained where the allegations of such complaint appear to be the same, in substance, as the one which was stricken. Hillyer v. Winsted, 77 Conn. 304, 306, 59 A. 40; 1 Stephenson, Conn. Civ. Proc. (2d Ed.) §113 (d). The demurrer to the original complaint was sustained on the ground that the equitable relief sought was unnecessary because the plaintiffs had an adequate remedy at law. If the amended complaint stated a new cause of action, the motion to expunge should have been denied. If, however, the amended complaint merely restated the original cause of action, without curing the defect, the motion to expunge was properly granted. “When a demurrer to the whole ... of a pleading which purports to state an entire cause of action is sustained, the sustaining of the demurrer removes from the case the cause of action demurred to.” Grady v. Kennedy, 145 Conn. 579, 584, 145 A.2d 124; see Practice Book § 112. Thus, in the instant case the cause of action has been removed. The amendment to the complaint must either state a new cause of action or correct the defect. It has done neither.
The plaintiffs’ second count is unchanged in the amended complaint, except that paragraph 15a of the first count is now included. As noted, that paragraph does not cure the defect or state a new cause of action.
The only major change in the amended complaint is the addition of a third count. The plaintiffs claim
Paragraphs 19-25 are repetitions of the allegations found, either expressly or implicitly, in the first count of both the original and the amended complaints. Thus they do not operate to add anything to the original complaint. In all, the third count does not succeed in showing that there is no adequate remedy at law or in providing a new cause of action.
Finally, the plaintiffs’ claims of relief are identical in both complaints. They, too, do not cause the amended complaint to be different in substance from the original complaint.
There is no error.
In this opinion the other judges concurred.