By voluntarily filing an amended counterclaim for the same subject-matter, after the first has been adjudged insufficient on demurrer, the defendant waives his right to except to such ruling. A ruling or judgment made with the express and unqualified consent of a party cannot be regarded as adverse to him nor as affording him a ground of appeal. Whether the defendant shall be allowed to file a counterclaim after all the evidence has been heard, is a matter resting in the sound discretion of the trial court, whose action will be reviewed on appeal only where a clear abuse of that discretion is shown.
Submitted on briefs April 12th, 1906
Decided May 3d 1906.
ACTION to recover for merchandise sold, brought to the Superior Court in Fairfield County where successive defenses by way of counterclaim were adjudged insufficient on demurrer ( Roraback and Shumway, Js.), and the cause was afterward tried to the court, George W. Wheeler, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendants. No error.
John J. Walsh and James T. Hubbell, for the appellants (defendants).
Edward M. Lockwood, for the appellee (plaintiff).
In this action, to recover upon the common counts and a bill of particulars, the defendants filed a counterclaim. The court sustained a demurrer thereto and granted leave to amend. An amended counterclaim for the same cause of action as the former was thereupon filed. The plaintiff again demurred. Thereupon the attorneys for the defendants consented that the demurrer should be sustained without argument, and in pursuance of such consent the same was sustained. No further pleadings were attempted to be filed until at the time of the trial, about six months later. After the evidence was all in the defendants moved for leave to file a counterclaim differing from any theretofore presented. The motion was denied for the reason that it came too late. These three rulings are in the reasons of appeal assigned as error, and no other assignments are made.
The defendants waived their right to except to the first ruling complained of when they subsequently volunteered to file an amended counterclaim for the same subject-matter as the former. Goodrich v. Stanton, 71 Conn. 418, 425, 42 A. 74; Botsford v. Wallace, 72 Conn. 195, 202, 44 A. 10; Boland v. O'Neil, 72 Conn. 217, 220, 44 A. 15; Goodrich v. Alfred, 72 Conn. 257, 260, 43 A. 1041; Mitchell v. Smith, 74 Conn. 125, 128, 49 A. 909; Burke v. Wright, 75 Conn. 641, 643, 55 A. 14.
The second ruling was made with the defendants' express consent, which was given without reservation or qualification. A judgment or ruling so rendered or made cannot be regarded as adverse; neither can the consenting party be regarded as aggrieved thereby. General Statutes, §§ 788, 802; Goodrich v. Alfred, 72 Conn. 257, 43 A. 1041; Farrell v. Waterbury Horse R. Co., 60 Conn. 239, 21 A. 675.
In denying the motion for leave to file the counterclaim, the court was acting in the exercise of the discretionary power vested in it. Goodale v. Rohan, 76 Conn. 680, 681, 58 A. 4; Botsford v. Wallace, 69 Conn. 263, 272, 37 A. 902. Error will not be imputed to such action unless a clear abuse is shown. State v. Willis, 71 Conn. 293, 313, 41 A. 820; Goodale v. Rohan, 76 Conn. 680, 58 A. 4. There is nothing in the facts of this case to suggest an abuse.