Pope v. Town of Watertown

• Decision Date: 28 February 1950
• Citation: 136 Conn. 437,72 A.2d 235
• Court: Connecticut Supreme Court
• Parties: POPE et al. v. TOWN OF WATERTOWN. Supreme Court of Errors of Connecticut

Page 235

72 A.2d 235

136 Conn. 437

POPE et al. v. TOWN OF WATERTOWN.

Supreme Court of Errors of Connecticut.

Feb. 28, 1950.

Harry M. Albert, Waterbury, with whom, on the brief, was Michael V. Blansfield, Waterbury, for appellants (plaintiffs).

Walter W. Smyth, Waterbury, with whom, on the brief, was John H. Cassidy, Waterbury, for appellee (defendant).

Before MALTBIE, C. J., and BROWN, JENNINGS, DICKENSON and BALDWIN, JJ.

DICKENSON, Judge.

In this action a demurrer to the complaint was sustained, a substitute complaint was filed, a demurrer to this was sustained and judgment for the defendant was entered on motion. The plaintiffs have appealed, assigning error in the sustaining of both demurrers and in the denial by the trial court of a motion to cite in a new party defendant. The voluntary filing of the substitute complaint operated as a withdrawal of the original complaint and that is not before us except as a part of the history of the case. Antman v. Connecticut Light & Power Co., 117 Conn. 230, 234, 167 A. 715. The motion to cite in was made several years after the action was brought. It was within the discretion of the trial court to deny it. Starr Cash & Package Car Co. v. Starr, 69 Conn. 440, 445, 37 A. 1057.

The material allegations of the substitute complaint, admitted by demurrer, may be summarized as follows: The plaintiff Pope was a justice of the peace elected by the town of Watertown, the defendant, and was acting as a trial justice in the town. The plaintiff Flynn was a grand juror of the town. In discharge of their respective official duties they participated in the trial of Chester Gmitrzak, who was found guilty of criminal charges and committed to jail. Thereafter, Gmitrzak was released from confinement by the Superior Court on a writ of habeas corpus. Subsequently, he brought a civil action against Pope and Flynn for false imprisonment and illegal detention claiming an illegal judgment of guilty. After service of the complaint against Pope and Flynn they requested the first selectment of the town of Watertown for a recommendation of counsel to defend them. The first selectman advised them to obtain counsel of their own choice and, as to the question of expense, said that the case would have to be tried first and then the matter would be presented to the board of finance for appropriation. They engaged counsel to defend the action. On September 12, 1939, a letter was written to the board of finance asking for an appropriation to defend the action, to which there was no affirmative response. The plaintiffs settled the action against them during trial by the payment of $175. They incurred an obligation of $650 for legal services in connection with it. On or about October 10, 1941, a request was made to the chairman of the board of finance to bring the matter before that board. This was attempted, but it was found it could not be acted on in the absence of its inclusion as an item in the budget. On or about November 24, 1941, the board of selectmen of the defendant town was petitioned to call a special town meeting for an appropriation to indemnify the plaintiffs. What action was taken as to this is not alleged. The plaintiffs acted in good faith and...