Mitchell v. Smith

• Decision Date: 23 July 1901
• Citation: Mitchell v. Smith, 74 Conn. 125, 49 A. 909 (Conn. 1901)
• Court: Connecticut Supreme Court
• Parties: MITCHELL v. SMITH.

49 A. 909

74 Conn. 125

MITCHELL

v. SMITH.

Supreme Court of Errors of Connecticut.

July 23, 1901.

Appeal from district court of Waterbury; George H. Cowell and Albert P. Bradstreet, Judges.

Action by John L. Mitchell against Mary E. Wright Smith.Judgment for plaintiff, and defendant appeals.Affirmed.

The action is brought upon two promissory notes.Plea in abatement filed.After demurrer to plea had been filed, the defendant moved for leave to amend, which was denied by the court(Cowell, J.).The answer did not state in words any admission or denial, but merely alleged that the defendant was married prior to 1877. and ever since had remained married.A demurrer to this answer was sustained.The defendant filed a new answer, denying each allegation of the complaint.After trial to court, and judgment for plaintiff, the defendant appealed.The errors assigned are: (1)"In refusing to allow the defendant to amend her plea in abatement;"(2)"in sustaining the plaintiff's demurrer to the defendant's plea in abatement;"(3)"in sustaining the plaintiff's demurrer to the defendant's answer of coverture."

Susan C. O'Neill and Isabella M. Pettus, for appellant.

Samuel A. Davis, for appellee.

HAMERSLEY, J.(after stating the facts).Pleas in abatement must be filed on or before the opening of the court op the day following the return day of the writ.Rules of Court, p. 13, § 12.Ignorance of a cause of abatement will not justify filing a plea after the time limited.Huntley v. Holt, 59 Conn. 102, 105. 22 Atl. 34, 21 Am. St. Rep. 71.The plea cannot be amended after the time for filing has expired, except by leave of court.Granting such leave is a matter of discretion, never to be exercised favorably unless an allowance of the amendment would really serve the ends of justice.Bracket v. Railroad Co., 73 Conn. 428, 431, 47 Atl. 763.Ordinarily, when the allowance of any amendment is within the discretion of the trial court, its action will not be reviewed; and, in those instances where it may be reviewed, an order of disallowance will not be set aside unless this court is of opinion that the amendment should have been allowed.Moran v. Bentley, 71 Conn. 628, 628, 629, 42 Atl. 1013.Assuming that the action of the trial court in the present instance may be reviewed, we are not of opinion that the amendment should have been allowed.The reason of our very liberal and broad statute, permitting amendments of pleadings at any stage of the trial, is that a party may fail to state the real ground that will save him in his cause, and that the amendment will serve to settle the cause on its actual merits.Such reason does not generally apply to amendments of pleas in abatements, and clearly not to the one now before us.The settled and salutary rule which requires courts to show little favor to pleas in abatement will often forbid an amendment which might properly be allowed if offered in the case of a plea to the merits.Esdaile v. Lund, 12 Mees. & W. 606, 614.

The instances are few where the court can properly allow an amendment to a plea in abatement unless matter is so pleaded that might also be pleaded in bar.In the present casethe defendant's plea sets up a doubtful and harmless informality in the certificate of the magistrate issuing the writ, and a clerical error of the officer who served it in copying the original writ, by which the copy named the return day as the first Tuesday in April instead of the...