Royce v. Westport

In Royce v. Westport, 183 Conn. 177, 439 A.2d 298 (1981), the Court held that: "Upon the sustaining of a demurrer the losing party may take one of two courses of action. He may amend his pleading, or he may stand on his original pleading, allow judgment to be rendered against him, and appeal the sustaining of the demurrer. . . . The choices are mutually exclusive. The filing of an amended pleading operates as a waiver of the right to claim that there was error in the sustaining of the demurrer to the original pleading. . . . When a demurrer is sustained and the pleading to which it was directed is amended, that amendment acts to remove the original pleading and the demurrer thereto from the case. The filing of the amended pleading is a withdrawal of the original pleading. . . . By withdrawing one complaint and replacing it by another, the plaintiffs escaped an adverse judgment, and also abandoned any claim to a favorable judgment on the complaint so withdrawn. . . . It is thus clear that a plaintiff cannot file an amendment after the sustaining of a demurrer and, at the same time, appeal from a decision sustaining that demurrer. . . . The rule is a sound one, as it serves to prevent the prolongation of litigation." Royce v. Westport, supra, 183 Conn. at 178-79.