476 A.2d 1094 | Conn. Super. Ct. | 1984
The record indicates that on June 30, 1983, the defendant filed the present motion to dismiss which came before the court without argument on August 29, 1983. The record further indicates that on the same date the motion to dismiss was denied without amplification, and that on February 16, 1984, the defendant moved for articulation claiming that the decision denying the motion to dismiss was contrary to previous decisions. After review of the record the court agrees with the defendant.
The factual situation which precipitated the motion to dismiss is apparent from the record and may be summarized as follows: The plaintiff instituted the present appeal from the action of the commissioner of revenue services under the provisions of General Statutes §
The process including the complaint and summons was returned to the clerk on May 20, 1983. It is noted *249
that such service was returned twenty-three days after the return date specified in the complaint and citation. The provisions of General Statutes §
On May 24, 1983, the plaintiff amended its citation to show a return date of June 7, 1983, and the date of "process" to May 24, 1983.
The pivotal issue here is whether the plaintiff can avoid the effect of a late return by amending the papers to show a later return day which conforms to the actual return to court.
Late return of process does not render an action void but merely voidable. Haaberg v. Sanders,
Where return of service is not timely, however, the courts have uniformly held that the defect cannot be cured by amendment. Safford v. Morris Metal ProductsCo.,
The plaintiff claims that the six-day provision of §
Because of the above, the decision of August 29, 1983, denying the defendant's motion to dismiss is hereby set aside and the defendant's motion to dismiss is granted.