Allen v. Chase

• Decision Date: 18 December 1908
• Citation: 71 A. 367,81 Conn. 474
• Court: Connecticut Supreme Court
• Parties: ALLEN v. CHASE.

71 A. 367

81 Conn. 474

ALLEN

v. CHASE.

Supreme Court of Errors of Connecticut.

Dec. 18, 1908.

Appeal from Court of Common Pleas, Fairfield County; Carl Foster, Judge.

Action by Anjeannette Allen, as administratrix, etc., against Prentice W. Chase. Judgment for plaintiff, and defendant appeals. Affirmed.

Robert J. Woodruff, for appellant.

Samuel A. Davis, for appellee.

THAYER, J. By filing a substituted answer the defendant waived all right to thereafter question the correctness of the ruling sustaining the demurrer to the original answer. Mitchell v. Smith, 74 Conn. 125, 127, 49 Atl. 909; Burke v. Wright, 75 Conn. 641, 643, 55 Atl. 14.

The defendant moved that Sturges Whitlock be cited in as a party defendant, basing the motion, apparently, upon the facts set up in the substituted answer Those facts do not show that Whitlock's presence as a party was in any way essential to a proper determination of the controversy between the plaintiff and defendant, or that he had, or claimed to have, any interest in that controversy. A defendant is not permitted to bring in third parties for the purpose of litigating with them matters in no way connected with the suit. State v. Wright, 50 Conn. 580, 583; Carroll v. Weaver. 65 Conn. 70, 84, 31 Atl. 489; Lowndes v. City National Bank, 79 Conn. 693, 696, 66 Atl. 514. The motion was therefore properly denied.

The amendments to the complaint were clerical ones which did not change the issues, and an increase of the amount named in the ad damnum clause. Such amendments are permitted at any time before verdict, at the discretion of the court, and their allowance in the present case affords the defendant no just cause for complaint.

When the case was called for trial on April 28, 1908, the day for which it was assigned, counsel for the defendant moved for its continuance upon the ground that the defendant, who was an important witness, was confined to his house by illness and produced a certificate of a physician as to the illness. The cause had already, on more than one occasion, been continued on motion of the defendant, and a judgment by default had once been entered against him because of his failure to appear, either in person or by attorney, or in any way to explain his nonappearance. The default had been opened and the case had been pending for some years. It was the last case to be tried by the jury in attendance. The court suggested that the case be postponed to the following day, before which time a reputable physician to be named by the plaintiff might examine the defendant and report his condition to the court, and the defendant might produce in court the physician whose certificate had already been presented. Thereupon counsel for the defendant moved that the cause be continued until Thursday, April 30th, agreeing that the cause should then proceed to trial whether the defendant was present or not, and that if it should appear that the defendant was to be prevented by illness from appearing in court his counsel would, on April 29th, notify counsel for the plaintiff and on that day take the defendant's deposition. The plaintiff's counsel agreed to this, and the court continued the case to April 30th. Counsel for the defendant did not take his deposition, or notify counsel for the plaintiff, but on April 30th appeared and moved for the continuance of the cause upon the same ground as before, producing a physician's certificate sworn to before a notary public but did not produce the physician. The court denied the motion. Thereupon counsel for the defendant prepared an affidavit, signed and sworn to by himself, wherein he stated what he believed the defendant would swear to if he were in court, and moved that the cause be continued, unless counsel for the plaintiff would consent that said affidavit be introduced as evidence in the case. The...