Jartman v. Pacific Fire Insurance

69 Conn. 355 | Conn. | 1897

Andrews, C. J.

An application to open a default is, when not based on a pure error of law, addressed to the sound discretion of the court.

On the defendant’s own claim, it received in due season what purported to be a copy of the writ requiring it to appear before the Court of Common Pleas to be holden on the Monday of the following month, and immediately forwarded to one whom, in its “proposed finding,” is styled “ the representative or agent of said company in this State,” for proper action. This representative took no action, under the mistaken belief that the copy was correct, and that a writ with such a blank could not be the foundation of a suit.

Some one must lose by this mistake; either the plaintiff, who has recovered judgment on a proper writ, and necessarily at an expense considerable in view of the amount in controversy, or the defendant, who has thus been held liable for a claim against which it had a good defense.

In our opinion, the judge of the Court of Common Pleas was justified in ruling that the company, rather than tire plaintiff, must be the party to suffer from the blunder of its representative. He should have consulted counsel before committing his principal to a policy of inaction. Woods v. Brzezinski, 57 Conn. 471. The amount of the judgment was not large enough to involve the defendant in any serious loss; while if the default had been opened, the plaintiff would necessarily have been put to such new expense as, in the event of his ultimate recovery, would have materially reduced, if not consumed the fruits of his litigation.

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.

It is therefore unnecessary to consider the numerous subordinate questions which are raised upon the record.

There is no error.

In this opinion the other judges concurred.