PECKEROFF v. PECKEROFF

Where an action was instituted on the common counts, a substituted complaint alleging that the defendant holds real property in a resulting trust for the plaintiff and praying an injunction, damages and other relief is not permissible. Although the defendant could have made a motion to strike out the substituted complaint, the situation, akin to one in which there is a misjoinder of causes of action, is properly met by demurrer.

INGLIS, J.

This action was instituted on the common counts. The plaintiff has now filed a substituted complaint alleging, in substance, that the defendant holds title to real property in a resulting trust for the plaintiff and praying an injunction compelling a conveyance of the property to the plaintiff, damages and other relief.

None of the common counts is a general statement of the cause of action set up in the substituted complaint. It is clear, therefore, that the substituted complaint is not a permissible one to be filed in this action. General Statutes, § 5527; Gallup v. Jeffery Co., 86 Conn. 308.

The plaintiff contends that the defendant's remedy would lie in a motion to strike out but does not rest in a demurrer. It is probably true that the question could properly have been raised on a motion to strike out on the ground that the substituted complaint was improperly filed. Practice Book, § 61; Goodrich v. Alfred, 72 Conn. 257. It does not necessarily follow, however, that such a motion is the exclusive remedy. The situation is closely akin to one in which there has been a misjoinder of causes of action, and therefore the proper way to meet it is by demurrer. Practice Book, § 100. The question, moreover, is not only one of procedure. It is a question of substantive law, i. e., whether the common courts state a course of action which is consonant with what it now appears that the plaintiff is really relying upon. Such a question is properly raised by demurrer. Goodrich v. Stanton, 71 Conn. 418.