DocketNumber: No. FA91 0283614 S
Citation Numbers: 1992 Conn. Super. Ct. 4800
Judges: KARAZIN, J.
Filed Date: 5/26/1992
Status: Non-Precedential
Modified Date: 4/17/2021
The relevant statute is
The power of a court to set aside a nonsuit judgment is controlled by
The statute provides that any judgment rendered upon a nonsuit may be set aside upon a written motion of any party prejudiced thereby showing reasonable cause in whole or in part CT Page 4801 existed at the time of the rendition of the judgment. Further, the requirement is that the plaintiff was prevented by mistake, accident, or other reasonable cause from prosecuting the action.
There is a two prong test for setting aside a judgment rendered after nonsuit. See Eastern Elevator Co. v. Scalzi,
It is clear then that requirement two is a necessary ingredient. A discussion of requirement two is dispositive of this case. Attached to this memorandum of decision is the memorandum of decision rendered by this court on March 18, 1992. The first four pages of that decision set forth the facts at the time of trial. It is clear that both the plaintiff wife and her attorney left of their own volition. The plaintiff wife's testimony at the hearing on the motion to reopen was that she was in the courtroom in the morning and knew of the order to proceed to trial but she left. She argued this motion pro se.
It is clear that the nonappearance of the attorney and the plaintiff wife was not an accident. In fact, it was an intentional act. Both of the parties, the attorney and the plaintiff wife, were ordered to be in the courtroom for trial. There has been presented no evidence of any reasonable cause for their nonappearance. They made a conscious decision not to appear.
Although the wife now appears to argue that it was a "mistake" that she did not appear and present her case, it is clear that the "mistake" addressed in the practice book section is one that was a mistake in fact or circumstances that would excuse her nonappearance. In a reported case a defendant's failure to appear for trial on an assigned date because the case never appeared on an assignment list and the caseflow coordinator had told the defendant no trial was scheduled for that date did constitute a good cause for opening a judgment of default. Cholewinski v. Conway,
At best, the actions of the attorney and the plaintiff wife were negligent. It is clear that a finding of negligence CT Page 4802 by a trial court does preclude the court from setting aside a nonsuit. Jaconski v. AMF, Inc.,
It is further clear that reasonable cause is not shown in this case. The orderly administration of justice requires that relief be denied unless the moving party alleges and shows reasonable cause for relief under the statute.
In a case where the defendant asserted there were reasonable grounds for not complying with the court order, she cited her history of illness and cause for seclusion as the reason for her failing to comply with the court order. The court in that case found that her failure to comply with a court order was due to her own negligence and, thus, the court was correct in its ruling and did not abuse its discretion in denying the motion to open the judgment of nonsuit. Jaquith v. Revson,
The burden is on the moving party. She has failed to sustain her burden of proof to reopen the judgment, and accordingly, the motion to reopen is denied.
EDWARD R. KARAZIN, JR., JUDGE