Opinion
No. CV 08 501 9563
February 13, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS
The defendant, Aurelius Piper, has moved this court to dismiss this action for the reason that the attorney who brought it failed to sign the box provided for his signature on the civil summons form (JD-CV-1). He did print his name in the adjacent box on that form labeled "name of person signing at left." He also signed his name in the recognizance box immediately below the unsigned signature box. He also signed the complaint at its foot.
The movant argues that the failure by an attorney to sign where indicated on the summons form is a fatal defect which deprives the court of personal jurisdiction over the defendant and cites Foster v. Smith, 91 Conn.App. 528, 536 (2005), as authority for that argument.
In Sargent v. Capitol Airlines, 96 Conn.App. 320 (2006), the trial court (Doherty, J.) held that the failure of the attorney to sign in the requisite box on the summons form was a fatal defect and granted the defendant's motion to dismiss. That decision was reached not withstanding the fact that the attorney in that matter had signed the complaint which contained the old-fashioned order to the [marshal] which read in relevant part, " OF THIS WRIT, with your doings thereon, make due service and return." (Emphasis added.)
On appeal, the Appellate Court held that the signature of the attorney on the complaint containing that instruction to the server was sufficient to meet the requirements under the statute and Practice Rules, and reversed the dismissal entered by the trial court.
In the instant case, the attorney did not add that directive language to the complaint and did not sign the box on the summons form.
The Appellate Court in Sargent went on to cite the effort by the attorney to file an amended summons within 30 days of the return date which was designed to cure the defect in the summons.
It did not find that the amended pleading was sufficient to cure the defect, but rather opted to find that, "Because we determine that Jacobs' inclusion of a sufficient direction to the process server in the plaintiff's complaint constitutes an adequate ground on which to reverse the court's judgment, we need not reach the issue of whether the amended writ of summons and complaint cured the defect in the original civil summons form." Sargent, supra, p. 325, fn.1.
That court went on to note, "It is also significant that Jacobs completed an amended civil summons form, signed it properly and mailed it with the plaintiff's complaint to the defendants' attorney within thirty days of the return date. General Statutes § 52-128 provides in relevant part that `[t]he plaintiff may amend any defect, mistake or informality in the writ, complaint, declaration or petition . . . without costs, within the first thirty days after the return day and at any time afterwards on the payment of costs at the discretion of the court . . .'" Id.
In the instant case the court adopts the Appellate Court's reasoning in Sargent and finds that "It is not the policy of our courts to interpret rules and statutes in so strict a manner as to deny a litigant the pursuit of [his] complaint for mere circumstantial defects . . . Indeed, § 52-123 . . . protects against just such consequences, by providing that no proceeding shall be abated for circumstantial errors so long as there is sufficient notice to the parties . . . It is our expressed policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court . . . The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure." (Citation omitted; internal quotation marks omitted.) Boyles v. Preston, 68 Conn.App. 596 (2002), as cited in Sargent, supra, p. 324.
For the foregoing reasons, the defendant's motion to dismiss is hereby denied.