Conderino v. Town of Marlborough

Under date of June 22, 1962, permission was granted to the plaintiffs to file a substituted complaint in this action. This motion was *144 dated June 15, 1962, and quite properly contained a substitute complaint such as was proposed to be tiled. The defendants have demurred to this substitute complaint. The motion of June 15, 1962, was as follows: “In the above entitled action, the Plaintiffs move for permission to file a substituted complaint in accordance with the proposed substituted complaint annexed hereto for filing in order to conform with the law and to simplify and clarify the issues as to each defendant.” Attached to the motion was the form of the proposed substitute complaint. In fact, no substitute complaint has been filed, although permission to file one was granted. Permission to file a substitute complaint, although granted, does not constitute the actual filing of a substitute complaint which will support a judgment.

“In view of the clear language of our Supreme Court, it does not seem that the demurrer to this nonexistent pleading could be sustained on any theory, even on the basis of the apparent acquiescence of all parties in treating the proposed . . . [substitute] complaint included in the motion for permission to file as the equivalent of an actual . . . [substitute] complaint. Motiejaitis vs. Johnson, 117 Conn. 631, 638.” Balsamo v. Verdi, 9 Conn. Sup. 402, 403; see Sabat v. Barron, 12 Conn. Sup. 218; Practice Book, 1963, § 132.

For the foregoing reasons, the demurrer to the nonexistent “Substitute Complaint” is overruled.