17 Conn. Supp. 406 | Conn. Super. Ct. | 1951
This memorandum is an explanation of that filed on January 30, 1951, (document No. 44 in the file) because, at least one of the parties seems in doubt as concerns the rationale underlying the conclusions reached therein. The first *407 count of the complaint alleges a conspiracy in which the defendant International Brotherhood, hereinafter called the "International," was a participant, to "injure and destroy the good will, trade, business and property" of the plaintiff. The latter is a Connecticut corporation engaged in the business of buying, selling, processing and distributing, at wholesale and retail, milk, cream and dairy products," etc. The defendant International is described as a nonresident voluntary association which "conducts its activities, operates and does business within the limits of Fairfield County in Connecticut," together with certain of its named officers, individually, all of whom are residents of the state of New York.
The first count of the complaint alleges that the tort sued upon occurred on January 26, 1946. At that time and until July 3, 1947, the only means by which a valid judgment in personam could be had against a voluntary association, all of the officers of which were nonresidents of this state, was by service of process on its presiding officer, secretary or treasurer within this jurisdiction, if either of these could be found here. Coombs
v. Darling,
On September 19, 1949, plaintiff applied for and was granted permission to amend the process in the respect which was the cause of abatement and an order of court was entered directing *408 that service be made on the International in accordance with § 1421i, in a manner calculated to cure the defect. Service of process pursuant to this order was accomplished on October 19, 1949, which was three years, eight months and twenty-two days after the date of the commission of the tort alleged or more than eight months beyond the three-year period limited in § 8316.
With these facts of record, the defendant International, on November 24, 1950, in a special defense pleaded that the right of action against the International "did not accrue within three years next before the commencement of the action against the defendant...." The plaintiff in its reply, after reciting that the presiding officer, secretary and treasurer of the International are nonresidents of this state, so that said defendant was beyond reach of process such as would support a judgment in personam against it until July 3, 1947, upon the passage of § 1421i of the 1947 Supplement, pleaded that the running of the Statute of Limitations (§ 8316) was barred so far as service of process to support a personal judgment against it could be had, by virtue of § 8330 of the General Statutes. The last mentioned section provides: "In computing the time limited in the several cases aforesaid, the time during which the party, against whom there may be any such cause of action, shall be without this state, shall be excluded from the computation." The demurrer raises the question whether § 8330 is applicable to actions commenced under § 1421i (now § 7776 of the General Statutes) where, as here, a substantial period of time had elapsed since the commission of the tort before § 1421i, became effective and, therefore, available to a plaintiff. It is thus connoted that both the plaintiff and the defendant International, make the common assumption that § 8316, supra, applies to the plaintiff. This ignores the effect of General Statutes, § 7847, which provides in part: "If any plea in abatement of any process be ruled in favor of the defendant, the plaintiff may amend the defect on paying to defendant his costs to that time."
While the International in its application to amend the writ after the plea in abatement was sustained did not mention § 7847 by specific designation, it is apparent that it proceeded under that section in applying for leave to amend the writ after the plea in abatement was sustained. "The object of this statute is obvious. It was to save the loss of time, and the additional expense, which would be caused by the bringing of a new suit *409
to determine the merits of the controversy...." Hilton v. Osgood,
The foregoing is intended to support the following conclusions: (1) the special defense setting up the Statute of Limitations, § 8316, is insufficient because it appears in the pleadings that the action was commenced within the three-year period limited therein. The fact that the process was amended and new service made more than three years after the date of the *410 commission of the tort complained of does not alter this fact, since it is the original service and not that following the amendment of the writ which determines whether or not it is commenced within the period fixed in the applicable Statute of Limitations, upon the record presented here; (2) the reply to the special defense pleading § 8330 merely perpetuates the error inherent in the special defense since the latter could have no application unless § 8316 applied. The demurrer to the reply is, therefore, based upon a false premise and is, in consequence, addressed to a wholly academic matter and not to the merits of the controversy.
The demurrer to the reply to the International's special defense is, for the reasons noted, overruled. The time within which defendant International shall further plead as prescribed by Practice Book, § 85, shall date from the time that this memorandum is filed in the office of the clerk and not when the previous memorandum of decision on the demurrer to reply to defendant International's special defense (document No. 44) was filed.