Opinion
File No. 64518
In an action to foreclose a mortgage and to obtain a deficiency judgment, a counterclaim setting forth an alleged abuse of process wrought by the excessiveness of the attachment with which the suit was begun is not permissible. The counterclaim sounds in tort and its subject matter has no connection with the making, validity or enforcement of the mortgage; hence it is not proper matter for adjudication in this foreclosure action. A motion to expunge the counterclaim is required to be granted. The moving defendant's objection to the classification of the motion as one to expunge is without force. The plaintiff is attempting to adopt the provisions of section 726g of the 1943 Supplement to the General Statutes, whose aim is to abolish all distinction between a motion to strike and one to expunge. Use of the motion is appropriate, not as a means of testing whether the counterclaim alleges a good cause of action but of determining the propriety of a counterclaim, alleging abuse of process, in an action to foreclose a mortgage.
MEMORANDUM FILED JANUARY 11, 1944.
James E. Connor, and William L. Beers, of New Haven, for the Plaintiff.
T. Holmes Bracken, of New Haven, for the Defendant Reilly.
Memorandum of decision on motion to expunge counterclaim.
This action seeks to foreclose a mortgage and to obtain a deficiency judgment against the named defendant and one other. Pursuant to the command of the writ, the sheriff attached several parcels of land standing in the name of the defendant Reilly. The latter has, by answer, admitted all allegations of the complaint and has also set up a special defense, a demurrer to which is being presently sustained. In addition thereto Reilly has filed a counterclaim, setting forth as a cause of action, an alleged abuse of process wrought by the excessiveness of the attachment with which the present suit began. The plaintiff now moves to expunge the counterclaim.
Reilly's claim that the motion should not be given consideration in view of the filing of a demurrer to the special defense is without merit.
His further objection to the classification of the motion as one to expunge is equally without force. The plaintiff is attempting to adopt the provisions of section 726g of the 1943 Supplement to the General Statutes, whose aim, it would seem, is to abolish all distinction between a motion to strike and one to expunge. Its use in the present case is appropriate, not as a means of testing whether the counter claim alleges a good cause of action but of determining the propriety of a counterclaim, alleging abuse of process, in an action to foreclose a mortgage.
The counterclaim sounds in tort and its subject matter has no connection with the making, validity or enforcement of the mortgage. This makes it an improper matter for adjudication in this litigation. Schaefer vs. O. K. Tool Co., Inc., 110 Conn. 528.