DocketNumber: No. 0099178
Citation Numbers: 1992 Conn. Super. Ct. 6001
Judges: BARNETT, J.
Filed Date: 6/19/1992
Status: Non-Precedential
Modified Date: 4/17/2021
Herbert Scott, Esq. as Executor of the Estate of Lincoln Carson was among the many persons summoned to appear as a defendant in this case. The return of Deputy Sheriff Domenic J. Janetty shows that a copy of the writ, summons and complaint was left in Scott's hands on April 30, 1991.
The complaint, however, does not refer to Scott in his capacity of executor or at all. Allegations in the complaint concerning Lincoln Carson are as follows: in the first count, Carson and the numerous other defendants are described as partners in Genvest, a partnership indebted to the plaintiff; in the thirteenth count all the allegations of the first count are incorporated by reference and, in addition, the thirteenth count alleges that Lincoln Carson executed a guaranty agreement whereby he unconditionally guaranteed the payment of Genvest's note and waived notice and demand for payment. A copy of the guaranty agreement with a signature represented as Carson's affixed is attached to the writ, summons and complaint as Exhibit I. The same procedure has been followed with the other alleged guarantors. CT Page 6002
On January 8, 1992, Scott moved to dismiss the case insofar as it purports to state a claim against him as executor or against Lincoln Carson as an individual or against his estate. In the motion to dismiss, the claim is made that the court lacks both in personam and subject matter jurisdiction. Scott's claim of a lack of in personam jurisdiction was, of course, not made within the proper time and thus has been waived. Practice Book 142, 144. A lack of subject-matter, however, can be raised at any time and once raised must be considered. Statewide Grievance Committee v. Rozbicki,
The motion to amend which the parties agree should be granted if the motion to dismiss is denied recites Lincoln Carson's death, the appointment of Herbert Scott as executor of the estate and the responsibility of Scott, as fiduciary, to use the estate to satisfy creditors of his decedent.
A review of the relevant constitutional and statutory provisions demonstrates without a doubt that the court has subject matter jurisdiction over this suit involving a debt and a guaranty of its payment. Both Article
Civil actions are begun by a writ of summons or attachment accompanied by a complaint. General Statutes
Although it may be said that the complaint does not contain a statement of all of the facts constituting the plaintiff's cause of action, see General Statutes
/s/ Barnett, J. BARNETT