McInerney v. Cecio Bros., Inc.

• Decision Date: 22 March 1983
• Citation: 457 A.2d 303,189 Conn. 547
• Court: Connecticut Supreme Court
• Parties: Cheryl McINERNEY, Administratrix (Estate of Michael McInerney) et al. v. CECIO BROTHERS, INC., et al.

Page 303

457 A.2d 303

189 Conn. 547

Cheryl McINERNEY, Administratrix (Estate of Michael McInerney) et al. v. CECIO BROTHERS, INC., et al.

Supreme Court of Connecticut.

Argued February 10, 1983.

Decided March 22, 1983.

Frank W. Murphy, Norwalk, with whom, on the brief was Reuben S. Midler, Norwalk, for appellants (plaintiffs).

Robert D. McGann, Hartford, for appellee (named defendant).

Julian A. Sohon, Jr., Bridgeport, for appellee (defendant Martin Monic).

Before ARTHUR H. HEALEY, PARSKEY, SHEA, GRILLO and COVELLO, JJ. PER CURIAM.

In this action, which arises out of the death of Michael McInerney, his estate claims damages for wrongful death, his wife's estate claims damages for loss of consortium for the period that she survived her husband, and his two children claim damages for loss of his society and services. These claims are set forth in a nine count complaint against the named defendant, for which Michael McInerney was working at the time of the accident which resulted in his death, and against two of his co-employees, who are alleged to have been at fault because of their wilful and wanton acts.

The trial court granted a motion of the defendant employer to strike the three counts of the complaint directed against it. Upon motion of one of the co-employees, the defendant Martin Monic, the court also struck two of the three counts against him. The effect of these rulings was to leave standing in the trial court the count of the estate of Michael McInerney for wrongful death against Martin Monic and the three counts against the other co-employee, Emil Cecio, who had elected to answer the complaint rather than move to strike any part of it.

The plaintiffs appealed from the "decision" granting the motions to strike rather than from a judgment, contrary to our established practice. General Statutes § 52-263; Practice Book § 3000. We might overlook this deficiency, which the defendants have waived by their failure to object, if there were in fact a judgment, but there is none, nor could one properly have been rendered. Practice Book § 157 authorizes the entry of judgment following the granting of a motion to strike only "in those instances where an entire complaint, counterclaim or cross complaint has been stricken ...." Since the court struck only five of the nine counts of the complaint, no judgment could have been rendered. "[T]he evident purpose of this restriction was to discourage piecemeal litigation by limiting appeals to situations where all of the claims made by a party have been resolved by the decision upon the motion to strike." Kilbride v. Dushkin Publishing Group, Inc., 186 Conn. 718, 721, 443 A.2d 922 (1982); Breen v. Phelps, 186 Conn. 86,...