177 A.2d 805 | Conn. Super. Ct. | 1961
The collision upon which this action is based is alleged to have occurred 1 October 1960. The plaintiffs sue in a complaint dated 16 December 1960, served on the 19th of that month and returnable on the first Tuesday of January 1961. The defendant Roy's answer was filed 28 January of this year. On 6 October, a motion to amend the answer was filed, accompanied by the proposed amendment, which contained a counterclaim by Roy arising out of the same collision. This motion was granted at the short calendar on 13 October. No one appeared in opposition thereto, since the plaintiffs' attorneys forwarded their copy of the motion *141 to their clients' insurance representative, who in turn sent it to their counsel. The latter did not receive the pleading until after it had been granted, but thereupon promptly filed their appearance and a motion to reopen the order granting the motion to amend.
Defendant's attorney resisted the reopening. The court, of course, has discretionary authority to reopen such an order. "`It is a general rule of law, that all the judgments, decrees or other orders of the courts, however conclusive in their character, are under the control of the court which pronounces them during the term at which they are rendered or entered of record, and that they may then be set aside, vacated, modified or annulled by the court.'"Tyler v. Aspinwall,
Defendant's attorney objects also because the motion to reopen contains a mention of insurance. The simple answer to this is that he has a right to request the trial court to withhold this pleading from the jury at the appropriate time. Further objection is made on the ground that the motion to reopen is sought to be filed by the insurance company's lawyers, who have no real interest except that of the insurer, instead of by the attorneys retained by the plaintiffs to represent their own cause. This does not hold, since the appearance filed by the insurance company's attorneys is entered *142 by the latter for the plaintiffs in pursuit of the insurer's contractual duty to defend the cause. It hardly needs the statement that that duty permits, not to say requires, that these attorneys use their best efforts and judgment to that effect.
The plaintiffs oppose the motion to amend the answer on the ground that the counterclaim is barred by the Statute of Limitations, §
The court at the hearing on this motion indicated that it had before it only the question whether or not the request to reopen the order should be granted, whereupon counsel agreed that the allowance of the amendment itself could also be argued at the same time in the interest of avoiding delay. Since they included in their arguments those bearing on the sufficiency of the counterclaim, it is academic whether the better procedure would be by demurrer. The court having decided to reopen the order, the allowance of the amendment on its merits is therefore considered.
The first issue was decided in Solomon v. Rosol,
Were the cause of action attempted to be set up in the counterclaim unknown to the common law and purely a creature of statute, the provision that the action must be brought within one year is a limitation on the liability and not the remedy.Young v. Margiotta,
Both of the acts involved here were incorporated in the Revision of 1902 and have been successively reenacted in the various revisions. The legislature is presumed to have been aware of the court's interpretation of statutes and the effect which its own nonaction thereafter may have. Buxton v. Ullman,
"An amendment to a complaint relates back to the institution of the action for some purposes . . . [cit.] . . . but when it sets up a new and different cause of action it speaks as of the date when it is filed." Kelsall v. Kelsall,
As to the plaintiffs' second point, the defendant argues that these pleadings were not closed, because pleadings are never closed since the court may always reopen them to permit amendment. This might have been, but was not, raised in the Solomon
case. It is, of course, true that the court can permit amendment at any time, even after judgment. IdealFinancing Assn. v. LaBonte,
We hold, therefore, that the phrase in §
The motion to amend the answer is denied.