
    Bertha W. Fresdall v. Donald Thomen
    Circuit Court Eighteenth Circuit
    File No. CV 18-6308-1080
    Memorandum filed August 14, 1963
    
      Randolph J. Smith, Jr., of Harwinton, for the plaintiff.
    
      Smith & Smith, of Torrington, for the defendant.
   Alexander, J.

Defendant pleads in abatement on the ground that the writ was not filed with the clerk of the court at least three days before the return day. Plaintiff has interposed a demurrer to this plea, averring that such filing is not required.

General Statutes § 52-48a provides: “Process in all civil actions, except summary process actions, . . . shall be made returnable on any Tuesday . . . . Such process shall be . . . returned to the clerk of the court at least three days before such date .... The return day in any summary process action may be any week day, Monday through Saturday, except a holiday.”

General Statutes § 52-532, our summary process statute, prescribes that the writ of summary process must be served six days before the return day, but is silent as to when the papers are to be filed with the clerk.

It would appear, merely from a reading of the preceding sentence, that the phrase “such process” in § 52-48a excludes summary process actions. This is further indicated by the provision in the last sentence in that statute and by the provision referred to above in § 52-532.

In view of this omission — or, at least, ambiguity — in our statutory law, it would seem unfair to exact compliance with this doubtful requirement. This result is all the more indicated “in a proceeding so little favored as a plea in abatement.” Milardo v. Branciforte, 108 Conn. 451, 453.

The demurrer is sustained.  