Arpaia v. Corrone

¶1This is a summary process action in which the defendants appeal from the judgment, rendered after a trial to the court, awarding possession to the plaintiff landlords. They claim that the trial court erred (1) in denying their motion to dismiss and (2) in concluding that the parties had orally agreed to a month-to-month lease and that the lease had terminated by lapse of time. We find error.

¶2The plaintiffs’ complaint alleged that the parties had orally agreed to a month-to-month lease and that the lease term had expired. The summons and complaint set the return date as January 29, 1987, and were returned to court on January 27, 1987.

¶3*540Before the trial began, the defendants moved to dismiss the action pursuant to Practice Book § 142,1 arguing that the return of process was not made in conformance with the requirements of General Statutes § 47a-23a.2 The trial court denied the defendants’ motion without explanation.

¶4Following a brief trial, the court found that the parties had agreed to a month-to-month lease and that the lease had expired. The court awarded possession of the premises to the plaintiffs. This appeal followed.

¶5We hold that the trial court erred in denying the motion to dismiss because the late return of process rendered the action subject to dismissal upon timely motion by the defendants. The summons and complaint were returned to court two days prior to the return day; they should have been returned “at least three days before the return day.”

¶6In Bergin v. Bergin, 3 Conn. App. 566, 490 A.2d 543, cert. denied, 196 Conn. 806, 404 A.2d 903 (1985), this court held that a late return of process, in an appeal from a Probate Court, rendered the appeal subject to dismissal. “ ‘Where return of service is not timely . . . the courts have uniformly held that the defect cannot be cured by amendment. Safford v. Morris Metal *541Products Co., 99 Conn. 372, 121 A. 885 (1923); Deni-son v. Crafts, 74 Conn. 38, 49 A. 351 (1901); LaMothe v. Gordon, 15 Conn. Sup. 504 (1948). The rationale of this proposition appears to be that once the date for return has passed there is nothing before the court which can be amended.’ William J. Petzold, Inc. v. Commissioner of Revenue Services, 39 Conn. Sup. 247, 249, 476 A.2d 1094 (1984).” Id., 569; see also 1 E. Stephenson, Connecticut Civil Procedure (2d Ed.) § 35, p. 139 and n.622. The late return of process renders the action voidable and, if the defendants choose not to waive the jurisdictional defect of a late return, the trial court must dismiss the action. Id.

¶7“[I]t is the actual return of the writ to the court which really puts the action before the court and empowers the court to proceed, even prior to return day.” 1 E. Stephenson, supra, § 21, p. 67. Thus, although a defendant in a civil action may consent to the jurisdiction of the court, the court may not proceed with the action until the return of process is made to the court. See, e.g., Algonquin Gas Transmission Co. v. Becker, 25 Conn. Sup. 448, 206 A.2d 846 (1952); annot., 82 A.L.R.2d 664.

¶8The failure to meet the statutory requirement for the return of process rendered the case subject to dismissal. The defendants timely filed a motion to dismiss and the trial court erred in not dismissing the action. Because we hold that the trial court erred in denying the defendants’ motion to dismiss, it is unnecessary to examine the defendants’ remaining claim of error.

¶9There is error, the judgment is set aside and the case is remanded with direction to render judgment dismissing the action.

¶10In this opinion the other judges concurred.