Connecticut § 52-123 - Circumstantial defects not to abate pleadings.

§ 52-123. Circumstantial defects not to abate pleadings.

Sec. 52-123. Circumstantial defects not to abate pleadings. No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.

(1949 Rev., S. 7845.)

Section was originally enacted as a separate act, applicable both to civil and criminal procedure, and so remained until the revision of 1821, when it was incorporated into the present title; it does not affect the right to demur. 40 C. 158. It will help out a plea in abatement. 34 C. 180; 45 C. 479; 60 C. 371. Pleas in abatement in the inferior courts must be filed at an early stage. 21 C. 510. Defendant in an action on contract may plead in abatement the want of service on codefendant. 45 C. 477; 76 C. 628. Plea in abatement will not lie for immaterial variance between writ and copy. 65 C. 539. Error in date of summons not a ground of abatement. 70 C. 351. Appeal from former board of relief; form of process. 72 C. 329. Appealing from justice court to wrong return day. 77 C. 38. Allowance by clerk of appeal from judge as special statutory tribunal. 68 C. 418. Change of return day after issuance of writ. 74 C. 38. Failure of indifferent person making arrest in bastardy to make sworn return. 85 C. 327. In Supreme Court; appeal to term already past; 67 C. 19; not stating time and place of sitting; 70 C. 329; 82 C. 386; to wrong return day; 74 C. 438; 77 C. 38; 83 C. 134; 85 C. 618; taken after time fixed by law; 79 C. 526; 82 C. 376; referring to county, not district; 79 C. 710; defect of parties; 73 C. 432; failure of request for finding to include claims of law. 66 C. 551. Applicable to bastardy complaint addressed to a justice of the peace but in fact presented and sworn to before a commissioner of the Superior Court. 104 C. 126. Cited. 115 C. 705; 122 C. 154; 178 C. 472; 211 C. 78. Limited in application to defects in the writ. Id., 431. Provides relief from defects in texts of writs such as designations of transportation commissioner as transportation commission. 212 C. 381. Cited. 217 C. 520. Designation of Department of Transportation in the summons rather than the commissioner is a misnomer falling within purview of statute. 228 C. 343. “Circumstantial error” discussed. 232 C. 392. Purpose of section is to afford relief from defects found in text of writ itself. 268 C. 541. Section is applicable to pleadings in summary process actions, and where notice to quit in summary process action provided wrong year for date to quit, trial court properly determined that defect was circumstantial and that defendant had received actual notice in accordance with Sec. 47a-23(a). 292 C. 381.

Cited. 3 CA 566; 5 CA 540; 23 CA 188; 31 CA 260. Case remanded for determination of whether naming former plaintiff in motion for deficiency judgment constituted circumstantial defect. 47 CA 459. Correction of the name of substitute plaintiff falls within category of circumstantial errors that can be cured pursuant to section. 56 CA 161. Section is a remedial statute and therefore “must be liberally construed in favor of those whom the legislature intended to benefit.” 81 CA 486. Because trade name is not an entity with legal capacity to sue, corporation had no standing to litigate merits of case when it brought an action solely in its trade name, without corporation itself being named as a party. 87 CA 474. Use of incorrect docket number is a circumstantial defect and does not deprive court of jurisdiction; statute applies to petitions for continued commitment. 92 CA 143. Plaintiff's attorney's failure to sign civil summons form was a circumstantial defect that did not deprive court of personal jurisdiction over defendants because the attorney directed a process server to serve defendants. 96 CA 320. Because named plaintiff used a fictitious name for itself when commencing the action, plaintiff was a fictitious entity and resulting error was not circumstantial and could not be saved under section. 136 CA 683. Section not available to save action where plaintiff conflated her legal capacity as executrix and as an individual and where plaintiff's motion under this section was filed more than 30 days after period for amendment under Sec. 52-128 had run and after action was dismissed. 137 CA 397. Plaintiff's use of trade name, unlike its legal name, when commencing action was not a circumstantial defect that could be cured under section. Id., 514. A scrivener's error such as an incorrect docket number will not deprive the court of jurisdiction, as it constitutes merely a circumstantial defect. 194 CA 727.

The omission of the name of the issuing authority is not an error to abate the pleading. 1 CS 21. Cited. 6 CS 183; 24 CS 295. Savings clause of section does not save from a demurrer a plea in abatement which fails to pray for judgment. 34 CS 251. Cited. 38 CS 712. Listing address of property that was the subject of the zoning appeal in the citation and complaint, rather than plaintiff's business address, was a circumstantial defect even under common law and did not deprive court of subject matter jurisdiction. 50 CS 513. Absence of a recognizance or a defective one in citation is circumstantial defect. Id.

Failure to set out address of defendant in writ is mere circumstantial defect and does not go to jurisdiction of court. 4 Conn. Cir. Ct. 468, 470, 472. Where defendant was served personally, failure to set out his address in writ is circumstantial defect and does not go to jurisdiction of court. 5 Conn. Cir. Ct. 235.

Secs. 52-124 and 52-125. Plea in abatement; issue of fact; answer over. Amendment after plea in abatement. Sections 52-124 and 52-125 are repealed.

(1949 Rev., S. 7846, 7847; 1961, P.A. 517, S. 133; P.A. 78-379, S. 26, 27.)