Grady v. Kennedy

• Decision Date: 24 July 1958
• Citation: 145 Conn. 579,145 A.2d 124
• Court: Connecticut Supreme Court
• Parties: James J. GRADY et al. v. Mary L. KENNEDY et al. Supreme Court of Errors of Connecticut

Page 124

145 A.2d 124

145 Conn. 579

James J. GRADY et al. v. Mary L. KENNEDY et al.

Supreme Court of Errors of Connecticut.

July 24, 1958.

Charles M. Lyman, New Haven, with whom was William H. Kingston, Ansonia, for appellants (plaintiffs).

William K. Bennett, Ansonia, with whom was Leon E. McCarthy, Ansonia, for appellees (named defendant et al.).

Before DALY, C. J., and BALDWIN, KING, MURPHY and MELLITZ, JJ.

DALY, Chief Justice.

In their complaint, dated April 17, 1957, the plaintiffs, husband and wife, alleged that the named plaintiff and the defendants were the heirs-at-law of Matthew Minch, who died on December 26, 1956; that the named defendant, in addition to being an heir-at-law, was the administratrix of the estate of the decedent; that on March 24, 1955, the decedent, being the owner of land and buildings in Ansonia, requested the plaintiffs to live with him on his property and make a home for him; that as an inducement to them he promised that he would give them the property by deed or will; that in reliance upon his promise they went to live with him; that from March 24, 1955, until his death they paid for the upkeep of the property, furnished his meals, looked after him and made a home for him; that on several occasions after March 24, 1955, he reiterated to them and others his intention that they, the plaintiffs, should become the owners of his property; and that he did not execute a deed of the property to them or devise it to them by will. They prayed a decree authorizing and directing the administratrix to execute and deliver to them a good and sufficient deed of the property, or a decree vesting title to it in them. Only five of the defendants have pleaded. Those five, including the named defendant, are hereinafter referred to as the defendants. They filed a demurrer to the complaint. ¹ The applicable portion of § 2935d of the 1955 Cumulative Supplement to the General Statutes is printed in the footnote. ²

On November 19, 1957, the court sustained the demurrer upon the first ground stated therein. The plaintiffs thereafter, on December 10, 1957, filed a pleading denominated a supplemental complaint. ³ The defendants filed a demurrer to the supplemental complaint. ⁴ After this demurrer had been sustained, the court granted the plaintiffs' motion 'that judgment be entered for said defendants in order that an appeal may be taken to the Supreme Court of Errors from the sustaining of said demurrers' and rendered judgment for the defendants. The plaintiffs have appealed. They claim that the court erred in sustaining the demurrer to the original complaint, in sustaining the demurrer to the supplemental complaint and in rendering judgment for the defendants.

As the very term 'supplemental' implies, the supplemental complaint must contain only facts which relate to, and are in aid of, the cause of action set forth in the complaint supplemented. 41 Am.Jur. 477, § 264. The original complaint, which contained no allegation that a claim had been presented to the administratrix, purported to set forth an equitable cause of action not barred by the provisions of § 2935d. When a demurrer to the whole or a portion of a pleading which purports to state an entire cause of action is sustained, the sustaining of the demurrer removes from the case the cause of action demurred to. Practice Book § 98. 'Whenever, after a demurrer sustained, the complaint or pleading demurred to is amended or a substitute filed, that demurrer, and the pleading to which it relates are taken out of the case. The filing of the amendment or substitution, as the case may be, is a withdrawal of the first.' Eames v. Mayo, 93 Conn. 479, 489, 106 A. 825, 828; Maltbie, Conn.App.Proc., § 48. The plaintiffs, by filing the supplemental complaint, waived their right to claim that the court erred in sustaining the demurrer to the complaint. Therefore we do not consider the plaintiffs' first assignment of error.

In their second assignment of error, the plaintiffs claim that the court erred in sustaining the demurrer to the supplemental complaint. They assert that their purpose in filing the supplemental complaint was to set up facts occurring after the commencement of the action. They contend that the filing of the supplemental complaint was, in effect, the commencement of a new action based on the facts alleged to have occurred after the commencement of the action; that by filing the supplemental complaint on December 10, 1957, they instituted a new action on that date; and that, since the time limited for the presentation of claims had then expired, written notice of disallowance was not required by the statute. As support for their claim that they instituted a new suit on December 10, 1957, they rely upon Kelsall v. Kelsall, 139 Conn. 163, 90 A.2d 878, an action for divorce brought on the ground of intolerable cruelty. The plaintiff in that case, with the permission of the court and after service of an amendment to the complaint, filed the amendment, which contained a second count alleging desertion. We said (139 Conn. at page 165, 90 A.2d at page 879): 'An amendment to a complaint relates back to the institution of the action for some purposes; * * * but when it sets up a new and different cause of action it speaks as of the date when it is filed. * * * A cause of action must arise from a single group of facts. * * * An amendment to a complaint for divorce on the ground of intolerable cruelty which sets up desertion in a new count is the statement of a new cause of action.'

We have to determine in the instant case whether the filing of the supplemental complaint had the effect of stating a new cause of action. No new count clearly setting forth a new cause of action was added, as was done in the Kelsall case, supra. The allegations of the supplemental complaint do not by themselves set forth any cause of action. The supplemental complaint does not incorporate by reference or otherwise pertinent allegations of the original complaint. It seeks legal relief only as an alternative to the equitable relief sought in the original complaint. It cannot be construed to have the effect of stating a new action but only as an attempt to add another claim for relief to an action begun before any claim was presented and before the expiration of the time limited for the presentation of claims. Reilly v. Antonio Pepe Co., 108 Conn. 436, 445, 143 A. 568. Therefore the requirements of § 2935d were not met, and the court was correct in...