Summary
addressing defendant's motion to open seeking to offer further evidence and to file new special defense after trial court rendered judgment in favor of plaintiff
Summary of this case from Ral Management, Inc. v. Valley View AssociatesOpinion
Argued January 3, 1939
Decided February 7, 1939.
ACTION by the payee of a promissory note against the maker, brought to the Court of Common Pleas for the Judicial District of Waterbury and tried to the court, McNiff, deputy judge; judgment for the defendant and appeal by the plaintiff. No error.
Francis P. Guilfoile, with whom was Lawrence J. Matzkin, and, on the brief, Yale Matzkin, for the appellant (plaintiff).
Harry M. Albert, with whom was Michael V. Blansfield, for the appellee (defendant).
The plaintiff sued upon a note for $5000, the defendant pleaded a general denial, and the trial court gave judgment for the plaintiff to recover the amount of the note with interest. Two days later, during the same term of court, the defendant made a motion to open the judgment in order to enable her to offer further evidence and to file an amendment to the answer specially pleading lack of consideration for the note. The trial court opened the judgment but did not then give permission for the filing of the special defense. Some time later it was filed but under what circumstances the record does not disclose. Another trial was had and the court sustained the plea of lack of consideration. The plaintiff appealed but did not obtain a finding of facts. The only claims of error pursued before us are that the trial court erred as matter of law in permitting the filing of the special defense. The judgment having been opened the case stood as though no judgment had been rendered. Simpson v. Y. M. C. A. of Bridgeport, 118 Conn. 414, 418, 172 A. 855. Upon this record we cannot hold that there was any such inconsistency in the defendant's pleading as to prevent her from advancing the defense of lack of consideration. Hoard v. Sears, Roebuck Co., Inc., 122 Conn. 185, 191, 188 A. 269. If, as is suggested by the record, the failure specially to plead that defense prevented the defendant from offering evidence upon that issue at the original trial, there was ample justification for the allowance of the amendment to the answer. Ideal Financing Association v. LaBonte, 120 Conn. 190, 195, 180 A. 300.