Opinion
File No. 51579
Robert J. Woodruff, Attorney for the Plaintiff.
Hull, McGuire Hull, Attorneys for the Defendant.
The amended reply departs from the original cause of action in that it has introduced material matter which not only fails to support but is in fact inconsistent with the complaint. The defendant files this motion to strike out. Held: No respectable system of pleading permits this for it tends to confusion and if a plaintiff desires to change his position, ample means are available through an amendment to his original complaint. Although the weight of authority holds that a demurrer is the proper method of meeting departure, this state has approved of a motion to strike out as at least effective to accomplish the end sought. Motion granted.
MEMORANDUM FILED SEPTEMBER 22, 1937.
The amended reply creates a departure from the original cause of action in that it has introduced material matter which not only fails to support but is in fact inconsistent with the complaint. No respectable system of pleading permits this for it tends to confusion. If the plaintiff desires to change his position, ample means are available through an amendment to his original complaint.
Although Swift states that a demurrer is the proper method of meeting departure and although this seems to be in conformity with the weight of authority, this State has approved of a motion to strike as at least effective to accomplish the end sought. Logiodice vs. Cannon, 60 Conn. 81. See also Bliss on Pleading, Section 396; Philibert vs. Burch, 4 Mo. Appeals, 470.