Fetzer v. Miscoe Spring Water Co.

• Decision Date: 16 June 1954
• Citation: Fetzer v. Miscoe Spring Water Co., 106 A.2d 149, 141 Conn. 364 (Conn. 1954)
• Court: Connecticut Supreme Court
• Parties: FETZER et al. v. MISCOE SPRING WATER CO. et al. Supreme Court of Errors of Connecticut

Page 149

106 A.2d 149

141 Conn. 364

FETZER et al. v. MISCOE SPRING WATER CO. et al.

Supreme Court of Errors of Connecticut.

June 16, 1954.

George Miske, Hartford, for appellants (plaintiffs).

DeLancey S. Pelgrift, Hartford, with whom, on the brief, was Robert E. Cohn, Hartford, for appellees (defendants).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

WYNNE, Associate Justice.

This is an appeal from a judgment of the Superior Court sustaining a plea in abatement and dismissing an action brought by the plaintiffs.

The record discloses the following situation: By an action returnable in October, 1950, the present plaintiffs sued for damages for personal injuries arising out of an accident in September, 1950. They are father and minor child. The action was on the trial list in the Superior Court for Hartford County. It had not been reached for assignment when, in April, 1953, at the annual call of the docket, it was stricken because of the plaintiffs' failure to file a request for a continuance. In October, 1953, a motion to restore to the docket was denied and the present action was brought, based on the same cause. The defendants pleaded in abatement to the new action on two grounds. They alleged that the bringing of the new action was an attempt to restore the action which had been dismissed and that the cause of action stated in the complaint did not accrue within one year next before the commencement of the action. The trial court correctly concluded that the allegation that the cause of action did not accrue within one year prior to the institution of the suit was not ground for abatement, pointing out that such an issue could be raised only by demurrer or answer. Jakiela v. Ellison, 114 Conn. 731, 732, 159 A. 657. The plea was sustained solely on the other ground.

The basis of that ground was that the files of the court made it apparent that the present action was an attempt to circumvent the court in the dismissal of the first action. The bringing of the present action was not an attempted restoration of the former suit. That former suit, without question, had gone to final judgment, although not upon the merits. Glazer v. Rosoff, 120 Conn. 120, 122, 179 A. 407. The present suit was a new action commenced by a new writ. Except for the fact that it alleged the same cause of action, it was separate and distinct from the former suit. The trial court had jurisdiction of the subject matter of the present action. It...