Anderson v. The Denison Clay Company

• Decision Date: 10 May 1919
• Docket Number: 22,111
• Citation: 104 Kan. 766,180 P. 797
• Parties: JOSEPH ANDERSON, Appellant, v. THE DENISON CLAY COMPANY, Appellee
• Court: Kansas Supreme Court

180 P. 797

104 Kan. 766

JOSEPH ANDERSON, Appellant, v. THE DENISON CLAY COMPANY, Appellee

No. 22,111

Supreme Court of Kansas

May 10, 1919

Decided January, 1919.

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PLEADINGS--Default--Leave to Plead--Judicial Discretion. A district court has jurisdiction to hear a defendant's motion to make the plaintiff's petition more definite and certain, although the motion is filed by leave of court after the defendant is in default.

2. SAME--Order to Amend Petition Proper. It was not error to require the plaintiff to make his petition more definite and certain.

3. SAME--Order of Court Not Complied With--Case Dismissed. If a proper order to make a petition more definite and certain is not complied with, the action may be dismissed.

W. H Vann, of Lenapah, Okla., for the appellant.

Charles D. Welch, of Coffeyville, for the appellee.

OPINION

MARSHALL, J.:

The plaintiff appeals from an order dismissing his action. It was one for damages for personal injury sustained by the plaintiff, caused by the negligent acts of the defendant while the plaintiff was working for the defendant in its brick plant at Coffeyville. Summons was duly served, but the defendant made default. Answer day was January 31, 1918. On February 6, the plaintiff requested that judgment be entered in his favor for $ 2,000, the amount of damages alleged and prayed for in the petition. The court refused to render judgment by default for that amount without evidence. The cause was then continued until February 28. On February 9, the defendant, by permission of court, filed a motion to make the petition more definite and certain in a number of particulars. Afterward the plaintiff filed a motion to strike the motion from the files. These motions were heard on March 1; the motion to strike from the files was denied, and the motion to make the petition more definite and certain was granted. The plaintiff was given ten days in which to comply with the order of the court. On March 11, the plaintiff filed a written statement declining to plead further, and electing to stand on his petition. On March 27, the defendant filed a motion to dismiss the action because the plaintiff had not complied with the order of the court. That motion was heard on June 1, 1918, when the plaintiff, in open court, refused to amend his petition, and elected to stand thereon. The action was then dismissed.

The plaintiff argues that the court did not have jurisdiction to hear the motion to require that the petition be made more definite and certain; that the court erred in sustaining that motion; and that the action should not have been dismissed.

1. Did the court have jurisdiction to hear the motion to make more definite and certain? That question is answered by section 108 of the code of civil procedure. It reads:

"The court or any judge thereof in vacation may in his discretion, and upon such terms as may be just, allow an answer or reply to be made or other act to be done after the time limited by this act, or by an order enlarge such time." (Gen. Stat. 1915, § 7000.)

The court had jurisdiction to grant leave to file the motion (Mo. P. Rly. Co. v. Linson, 39 Kan. 416, 18 P. 498; Torpedo Co. v. Petroleum Co., 75 Kan. 530, 89 P. 913), and then to hear it.

2. Was it error to sustain the defendant's motion to make the petition more definite and certain? The petition alleged that the plaintiff was working for the defendant in its brick plant, wheeling tile along the sides of the defendant's kilns, where there were ditches and trenches, usually constructed so that it was impossible for a man's foot to slip into them. The petition further alleged:

"Yet the said defendant, disregarding and neglecting its duty as aforesaid, did not then and there provide and furnish suitable, safe and sufficient means of passage into and out of said kilns, but on the contrary thereof did negligently and carelessly fail to provide and furnish suitable, safe and sufficient means of passage into and out of said kilns, whereby and by means of the unsuitable, unsafe and insufficient means of passage into and out of said kilns and on or about the 17th day of August, 1917, by reason of some of the cross-bricks being carelessly and negligently removed from the ditches or trenches aforesaid and the failure of said company to provide and furnish sufficient running boards which it did fail and neglect to provide and furnish, plaintiff in attempting to pass out of one of its kilns with a wheelbarrow load of tiles, accidentally slipped and stepped into one of the holes in one of said ditches or trenches, caused by the negligent and careless removal of some of the bricks from across one of said ditches or trenches, fell and broke his right arm by striking same against another loaded wheelbarrow standing near by in said kiln."

The defendant's motion asked, among other things, that the petition be made more definite and certain as to the place at which the plaintiff was injured. The petition was indefinite and uncertain in that respect. The defendant had a right to be informed definitely concerning that matter, in order to properly...