DocketNumber: No. CV93 30 13 60
Citation Numbers: 1993 Conn. Super. Ct. 3050, 8 Conn. Super. Ct. 478
Judges: FULLER, J.
Filed Date: 3/29/1993
Status: Non-Precedential
Modified Date: 4/18/2021
The sheriff's return states that he served a true and attested copy of the original writ, summons and complaint upon the defendant by personal service. The sheriff's return is prima facie evidence of the facts contained in it, Jenkins v. Bishop Apartments, Inc.,
Where there is a material variance between the copy of the complaint left with the defendant and the original, a motion to dismiss should be granted unless the defendant is not misled by the variance or omission. Gould v. Smith,
Even though the defendant has retained an attorney to appear and defend the action, that should not be controlling on a question of prejudice, because that rewards the plaintiff for serving an incomplete complaint on the defendant. In addition, it is a question of fact whether the copy of the complaint is insufficient, whether it sufficiently apprises the defendant of the material facts, and whether to take prompt action to protect a legal interest by hiring an attorney. The defendant who retains counsel should not by that fact alone be placed in an inferior position to the defendant who does not, and a deficient complaint may also be unclear even to an attorney who appears to protect the client's rights.
The better approach is that prejudice depends upon the degree of the omission of material facts or variance from the original complaint. Detailed analysis here would serve no useful purpose. A review of the copy served on the defendant indicates that it omits too much. Some of the omissions concern material facts, and others make the remaining, incomplete statements incomprehensible even to the experienced attorney, even if the fact that this is a foreclosure can be gleaned from the complaint as a whole.
The motion to dismiss is granted.
ROBERT A. FULLER, JUDGE