Gallup v. Thomas B. Jeffery Co.

• Court: Connecticut Supreme Court
• Writing for the Court: PRENTICE, J.
• Citation: Gallup v. Thomas B. Jeffery Co., 85 A. 374, 86 Conn. 308 (Conn. 1912)
• Decision Date: 19 December 1912
• Parties: GALLUP v. THOMAS B. JEFFERY CO. et al.

85 A. 374

86 Conn. 308

GALLUP

v. THOMAS B. JEFFERY CO. et al.

Supreme Court of Errors of Connecticut.

Dec. 19, 1912.

Appeal from Court of Common Pleas, New London County; Charles B. Waller, Judge.

Action by Henry H. Gallup against the Thomas B. Jeffery Company and another. Judgment for defendants, and plaintiff appeals. Affirmed.

The plaintiff brought his action upon the so-called common counts against two defendants, both corporations. One was that named in the title of the cause, and the other the American Bonding Company. Service was obtained upon the latter only. There being no appearance by either defendant within the statutory period, the plaintiff filed a substitute complaint, which set out the execution by the defendants of an attachment bond in the form prescribed by statute, its delivery to the plaintiff in substitution for an attachment made in an action brought by the plaintiff against a third party, and the breach of the condition of the bond. Plaintiff's counsel thereupon filed his affidavit that the facts stated in the substitute complaint were true, and that by reason thereof $475 was justly and equitably due from the defendant Bonding Company to the plaintiff, and upon the same day took judgment against said company for said sum, which judgment was duly entered up.

On the following day the Bonding Company appeared, and filed a motion that the default be opened, the judgment set aside, and the cause reinstated on the docket. This motion was granted. In the motion it was stated that the defendant had a good defense, to wit, that at the time demand upon execution was made upon the judgment debtor named in the bond set out in the substitute complaint the value of his interest in the property attached was nothing. At this stage the Jeffery Company voluntarily entered its appearance. A few days thereafter counsel for both defendants moved that the substitute complaint be stricken from the files, and this was done. Subsequently the plaintiff filed a motion for leave to amend his complaint by filing as a substitute complaint the same complaint which had been stricken from the files. This motion was denied. The plaintiff thereupon stated that he should plead no further, and judgment was rendered in favor of the defendants.

The appeal assigns as error the action of the court in opening the default and setting aside the judgment, in not limiting its order in this matter, so that the defendant be only entitled to be heard in the assessment of damages, in striking the substitute complaint from the files, and in denying the motion for leave to amend as stated.

Donald G. Perkins and Allyn L. Brown, both of Norwich, for appellant. Arthur M. Brown, of Norwich, for appellees.

PRENTICE, J. (after stating the facts as above). The only right of action which the plaintiff claimed to have against either of the defendants was one for which recovery could not be had under the so-called common counts. It was one arising from the breach of a penal bond with condition. The only obligation which the defendants assumed in executing that instrument was a conditional one, and not such a one as permitted the use of the common counts in an action for its breach. Goodrich v. Stanton, 71 Conn. 418, 424, 42 Atl. 74. This fact plaintiff's counsel apparently recognized when, before a default was taken, a substitute complaint was filed. The proceedings by which judgment was thus obtained were entirely irregular.

In the first place, the course pursued was, in practical effect, the institution of an action by the service of a summons alone, and thus an evasion of the requirements of our practice. "A complaint * * * must accompany a writ of summons or attachment. The writ is void if there is no complaint, and it is sheer oppression if the facts stated in the complaint are admittedly false. For this reason the plaintiff should not be permitted to bring the defendant into court or attach his property under a false statement of claim which he intends wholly to abandon, and then, by way of amendment, compel the defendant to litigate a different claim without being brought into court in the manner required by statute. Such an amendment is not an amendment, within the meaning of section 1023." Dunnett v. Thornton, 73 Conn. 1, 14, 40 Atl. 158, 102.

Again, the procedure had brought about the rendition of a judgment by default upon a cause of action in respect to which there...