Opinion
The judgment of nonsuit was for failure to appear on the trial date, not for failure to make out a prima facie case after going to trial it could be set aside on the plaintiff's motion, therefore, only upon a showing of "reasonable cause" under 52-212. Since there was no finding and the record did not otherwise show what cause there might be, the plaintiff failed to establish error in the denial of his motion to set aside the nonsuit.
Argued March 1, 1960
Decided March 15, 1960
Action to recover for property damage, alleged to have been caused by the negligence of the defendant, brought to the Court of Common Pleas in New Haven County, where the court, Sidor, J., ordered a judgment of nonsuit; from the subsequent refusal of the court, LaMacchia, J., to set aside the nonsuit, the plaintiff appealed. No error.
Richard H. Simons, for the appellant (plaintiff).
Howard F. Zoarski, with whom, on the brief, was
T. Holmes Bracken, for the appellee (defendant).
In January, 1950, the plaintiff instituted this action in negligence to recover for property damage to his automobile resulting from a collision with an automobile operated by the defendant. The judgment file discloses that it was not until about eight years later that issue was joined on the allegations of the complaint. A counterclaim was then filed, and issue was joined on its allegations about six weeks later. Thereafter, the action was specially assigned for trial on May 14, 1958, which was nearly two months after the pleadings had been closed. Neither party appeared on the trial date, and the court entered a judgment of nonsuit against the plaintiff on the complaint and against the defendant on the counterclaim. The plaintiff filed a motion to open the judgment of nonsuit. From the denial of the motion the plaintiff has appealed.
The plaintiff requested no finding, and none was made. Therefore we have nothing before us, outside the bare record, on which to review the action of the court. Practice Book 385. The facts as they appear of record have already been summarized. They disclose nothing as to why the plaintiff failed to appear for trial on the day the case was assigned, in accordance with Practice Book 133 and 136, or why a nonsuit was not properly entered under 133. White's Appeal, 75 Conn. 314, 318, 53 A. 582; Automotive Twins, Inc. v. Klein, 138 Conn. 28, 33, 82 A.2d 146. The nonsuit having been entered for failure to appear on the trial date, and not for failure to make out a prima facie case under 52-210 of the General Statutes, it was a final judgment from which an appeal lay. Maltbie, Conn. App. Proc. 11. And the subsequent motion to set aside the nonsuit was governed by 52-212 rather than by 52-211. Bassett v. Foster, 116 Conn. 29, 31, 163 A. 456; Automotive Twins, Inc. v. Klein, supra; Stanley v. Hartford, 140 Conn. 643, 648, 103 A.2d 147.
The judgment of nonsuit should have been opened if, but only if, in its sound discretion the court found that the plaintiff had shown "reasonable cause" under 52-212. Since there is no finding, the plaintiff, on this record, has shown no cause, reasonable or otherwise, why the motion to set aside the nonsuit should have been granted it follows that the plaintiff has failed to establish any error in the denial of the motion. Stanley v. Hartford, supra. This conclusion makes unnecessary a consideration of the defendant's claim that the plaintiff's motion to set aside the nonsuit was properly denied because the motion was not verified and therefore failed to conform to the requirements of 52-212.