Garden Mut. Ben. Ass'n v. Levy, 1087
| Court | Superior Court of Connecticut |
| Writing for the Court | BIELUCH |
| Citation | 437 A.2d 141,37 Conn.Supp. 790 |
| Parties | GARDEN MUTUAL BENEFIT ASSOCIATION v. Richard LEVY, et al. |
| Docket Number | No. 1087,1087 |
| Decision Date | 18 September 1981 |
Page 141
v.
Richard LEVY, et al.
Decided Sept. 18, 1981.
Shereen F. Edelson, Plainville, for appellant (plaintiff).
Albert D'Antonio, for appellee (defendant).
BIELUCH, Judge.
The plaintiff instituted this action to collect a debt secured by a promissory note on which the maker had defaulted and which the defendants had executed as co-makers and endorsers. On January 16, 1979, the plaintiff served defendant Robert Haymond (hereinafter Haymond) at his "usual place of abode," 61 Norwood Road, West Hartford, Connecticut. Haymond subsequently filed a motion to dismiss the action with supporting affidavits, contending that because West Hartford was not his usual place of abode, this service was insufficient to confer jurisdiction over him.
Although both parties submitted affidavits that disclosed the presence of issues of fact, the trial court granted the motion without an evidentiary hearing. On appeal, this court must decide whether, when considering a motion to dismiss, the trial court must hold [37 Conn.Supp. 791] an evidentiary hearing prior to determining jurisdictional questions when parties have submitted affidavits which present factual issues.
Section 143 of the Practice Book, 1978, provides that a motion to dismiss "shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits .... (This motion) may be opposed by pleadings, appropriate affidavits and memoranda of law." The motion to dismiss replaces the former plea in abatement. The case law interpreting the procedure of the former plea in abatement is, therefore, particularly instructive in construing a motion to dismiss.
Prior to the 1978 Practice Book revisions, the party opposing a plea in abatement was required to file a responsive pleading. Practice Book, 1963, § 95. The moving party, in turn, bore the burden of alleging and proving those facts which the responsive pleading placed in issue. Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 587-88, 409 A.2d 1029 (1979). Failure
Page 142
of the movant to present evidence sufficient to sustain the disputed allegations required the court to overrule the plea. DiCamillo v. Clomiro, 174 Conn. 351, 354, 387 A.2d 560 (1978). Thus, where the plea in abatement raised a factual issue, the court held an evidentiary hearing to ascertain the disputed fact prior to ruling...To continue reading
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Knights of Columbus Federal Credit Union v. Salisbury, 2050
...should have conducted an evidentiary hearing. The defendant mistakenly relies on Garden Mutual Benefit Ass'n v. Levy, 37 Conn.Sup. 790, 437 A.2d 141 (1981), to support that proposition. That case held that where affidavits filed by both parties disclosed the presence of issues of fact in co......
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Braham v. Newbould, 36235.
...or by affidavits. See Bradley's Appeal from Probate,19 Conn.App. 456, 465–67, 563 A.2d 1358 (1989); Garden Mutual Benefit Assn. v. Levy,37 Conn.Supp. 790, 792, 437 A.2d 141 (1981). In contrast, the defendants in the present case did not dispute the plaintiff's factual allegations. “[I]n the......
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Braham v. Newbould, AC 36235
...by affidavits. See Bradley's Appeal from Probate, 19 Conn. App. 456, 465-67, 563 A.2d 1358 (1989); Garden Mutual Benefit Assn. v. Levy, 37 Conn. Supp. 790, 792, 437 A.2d 141 (1981). In contrast, the defendants in the present case did not dispute the plaintiff's factual allegations. "[I]n th......
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Shay v. Rossi, (SC 16212)
...not conclusively presume the validity of the allegations of the complaint. Garden Mutual Benefit Assn. v. Levy, 37 Conn. Sup. 790, 791, 437 A.2d 141 (1981)." Barde v. Board of Trustees, supra, 62; see Practice Book ? 10-31.9 Both lines of 253 Conn. 141 cases, however, are premised on the fu......