Summary
In Parrott, the plaintiff filed an action in state court, and three years later a judgment of nonsuit was entered against him for his failure to proceed at trial when ordered to do so. He then asked his attorneys to withdraw the case and six months later instituted a second action in state court, identical to the first, through new counsel "purporting to act under the provisions of... § 52-592.
Summary of this case from Viejas Band of Kumeyaay Indians v. LorinskyOpinion
Argued October 6, 1971
Decided October 12, 1971
Action for malpractice, brought to the Superior Court in Fairfield County at Stamford, where the defendant filed a plea in abatement and the court, George, J., rendered judgment abating and dismissing the action, from which the plaintiff appealed. No error.
Thomas D. Clifford, for the appellant (plaintiff).
Francis A. Smith, Jr., with whom was Edward M. Sheehy, for the appellee (defendant).
The unattacked finding of the court discloses these pertinent facts. By writ returnable the first Tuesday of October, 1965, the plaintiff sued the defendant for medical malpractice. When the case was reached for trial on October 29, 1968, a judgment of nonsuit was rendered against the plaintiff because of his failure to proceed to trial when ordered to do so by the court. On February 14, 1969, the plaintiff gave his attorneys of record permission to stop the action. On February 20, 1969, the plaintiff's attorneys filed with the clerk of the Superior Court a withdrawal of the action. On October 27, 1969, the plaintiff filed a pro se appearance in the action attempting to have the case assigned for trial. In that motion the plaintiff indicated that he had authorized his attorneys to withdraw the original suit. On October 29, 1969, the plaintiff, by new counsel, purporting to act under the provisions of General Statutes § 52-592, instituted the present action which sets forth the identical cause of action claimed in the previous action and is between the same parties. The defendant pleaded in abatement that the court was without jurisdiction because the new action does not come within the provisions of § 52-592, which permits a new action to be brought on the "accidental failure of suit." The court sustained the plea in abatement and rendered judgment accordingly.
The ruling of the trial court was a correct one. The original action having been voluntarily withdrawn by the plaintiff, that "withdrawal . . . cannot by the most liberal construction constitute accidental failure of suit for matter of form," and the circumstances do not bring this case within the saving terms of § 52-592. Baker v. Baningoso, 134 Conn. 382, 387, 58 A.2d 5.