
    Elinor G. Tefft v. Wallace H. Tefft
    Superior Court Hartford County
    File No. 82698
    Memorandum filed February 9, 1949.
    
      Edward C. Carroll, of Hartford, for the Plaintiff.
   ALCORN, J.

The plaintiff brought an action for a divorce on the ground of intolerable cruelty, the defendant defaulted, the case was heard uncontested, and judgment was entered dismissing the complaint on December 29, 1948 (Murphy, J.). On December 31, 1948, the plaintiff filed this motion to open the judgment in order to offer the testimony of a witness to corroborate the plaintiff as to acts of cruelty.

It appears that the court heard the plaintiff’s evidence on December 10, 1948, and at the end of the hearing the plaintiff requested a continuance in order to offer the testimony of a doctor. The court granted the request and heard the doctor’s testimony on December 14, 1948. In the meantime the plaintiff’s attorney learned, on December 11, 1948, of another witness who agreed to appear voluntarily at the hearing on December 14. He failed to appear, however, and the plaintiff rested his case without seeking an opportunity to produce the witness at any time before judgment was entered and without compelling his attendance by subpoena. This is the witness whose testimony he proposes to offer if the judgment is opened, and it is conceded that the substance of his testimony was known several days before the second hearing.

Clearly the evidence was within the power of the plaintiff to introduce at the trial, and if a continuance were needed it would doubtless have been granted if sought. A reasonable exercise of discretion requires a denial of the motion. McPartland v. Beaumart, Inc., 124 Conn. 539, 542.

The motion is denied.  