Bassett v. Foster
| Decision Date | 20 December 1932 |
| Parties | BASSETT v. FOSTER. |
| Court | Connecticut Supreme Court |
Appeal from Court of Common Pleas, Fairfield County: Frederick W Huxford and Samuel C. Shaw, Judges.
Action by Robert L. Bassett against Maria C. Foster, to recover for goods sold. Defendant's demurrer to paragraphs 2 and 3 of the complaint was sustained, and judgment was entered, and plaintiff appeals.
Granville D. Stubbs, of Danbury, for appellant.
Leslie N. Davis, of Norwalk, for appellee.
Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.
The complaint as amended alleged an indebtedness of the defendant to the plaintiff, the items of which were stated in a bill of particulars annexed; that a previous action had been brought to recover the indebtedness within the period allowed by the applicable statute of limitations and an attachment made of the defendant's property; that the action had failed because of the neglect of the officer to whom the writ was given for service to return it to court before the return day; but that, instead of returning it, left it at the office of the plaintiff's attorney, where it was not discovered until too late to return it to court. To the paragraphs setting up the bringing of the previous action and the circumstances of the failure to return the writ to court, the defendant demurred, in effect upon the ground that the facts alleged did not come within the provisions of section 6024 of the General Statutes, which under certain circumstances permits a new action to be brought after the running of the statute of limitations, where an action brought within the period allowed by it has failed of trial upon its merits. The trial court sustained the demurrer. The defendant promptly filed an answer, containing a general denial of the remaining allegations of the complaint and setting up as a special defense the statute of limitations. The plaintiff failed to plead further, and a judgment of nonsuit was entered against him.
One of the causes of failure of an action specified in the statute as ground for bringing a new action after the statute of limitations has run is " insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed." The complaint as amended sets up a clear default or neglect of the officer in failing to return the writ to court before the return day, General Statutes § 5163; the sufficiency of the allegations as against the demurrer are to be tested by the facts provable under them Judd v. Mutual Bank &...
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Nowak v. Nowak
...filed. See General Statutes § 52-592; Ross Realty Corporation v. Surkis, 163 Conn. 388, 392-93, 311 A.2d 74 (1972); Bassett v. Foster, 116 Conn. 29, 30-31, 163 A. 456 (1932); Johnson v. Wheeler, 108 Conn. 484, 488, 143 A. 898 (1928); but cf. Stamford Dock & Realty Corporation v. Stamford, 1......
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Hartford-Connecticut Trust Co. v. Clark-Barone Co.
...Conn. 605, 609, 87 A.2d 805; Blakeslee v. Board of Water Commissioners, 106 Conn. 642, 649, 139 A. 106, 55 A.L.R. 1319; Bassett v. Foster, 116 Conn. 29, 31, 163 A. 456. It cannot be held as a matter of law that under the allegation of its special defense the plaintiff cannot successfully ma......
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Rutt v. Roche
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