Dante v. Dante

• Decision Date: 14 January 1919
• Citation: 93 Conn. 160,105 A. 353
• Court: Connecticut Supreme Court
• Parties: DANTE v. DANTE.

105 A. 353

93 Conn. 160

DANTE v. DANTE.

Supreme Court of Errors of Connecticut.

January 14, 1919

Appeal from Court of Common Pleas, Litchfield County; James P Woodruff, Judge.

Petition by Felicina Dante against Joseph Dante for a new trial, and that judgment be set aside. Demurrer to the complaint was sustained, and from a judgment for defendant, plaintiff appeals. Reversed and remanded for further proceedings.

The plaintiff's complaint, in substance, alleges that her husband, the defendant in this case, brought an action against her to the court of common pleas for Litchfield county, which was made returnable upon the first Tuesday of January, 1917; that this action was for the alleged conversion of household furniture claimed to be owned by the husband; that when this action was commenced she had been driven from her home by the intolerable cruelty of her husband; that the writ and complaint averred that this plaintiff had gone to parts unknown; that the officer's return upon the writ stated that he left a true and attested copy of this process at the usual place of abode of the present defendant; that this officer knew, or ought to have known, that no such copy was left at the plaintiff's usual place of abode; that this plaintiff never knew or had any reason to believe that any suit was or could be brought against her by her husband, and that she never had any notice, actual or constructive, of the pendency of the former action. On June 18, 1917, the present defendant recovered judgment by default against the plaintiff in this case for $1,000, in the court of common pleas for Litchfield county; that the plaintiff never knew that this action was pending against her and never had any opportunity to appear and defend the same, although she has a complete defense to the entire cause of action. The writ in the present case is dated November 15, 1917. The plaintiff claims that the judgment of $1,000, hereinbefore referred to, should be set aside, and that a new trial should be granted.

Thomas J. Wall, of Torrington, for appellant.

Samuel A. Herman, of Winsted, for appellee.

RORABACK, J.

The defendant, by demurrer, questions the sufficiency of the facts set forth in the complaint, and also the procedure by which the plaintiff is attempting to obtain relief. " The demurrer admits the facts averred, and no others, and there is no way known to the law whereby other facts may be imported into the issue tendered by the demurrer, or whereby that issue can become other than one as to the sufficiency of the allegations of the complaint as they are made." Ryan v. Knights of Columbus, 82 Conn. 92, 72 A. 574. For these reasons we cannot make use of certain facts set forth in a special finding of the court below, and the motion to have the same stricken from the record is allowed.

It can be stated, without discussion, that the complaint in the present case sets forth facts which, if true, furnish a substantial foundation for a claim for relief. It is not absolutely essential for the plaintiff to rest her application upon any statutory provision for granting new trials for reasonable cause. On the contrary if, as the defendant now claims, there is no adequate remedy at law, she may rely upon the general equity powers inherent in the court to which her application is addressed. This jurisdiction will be exercised, when to enforce a judgment recovered is against conscience, and where the applicant had no opportunity to make defense, or was prevented by accident or the fraud or improper management of the opposite party, and without fault on his own part. Carrington v. Holabird, 17 Conn....