Commonwealth Co. v. Lowenhaupt
| Decision Date | 06 April 1937 |
| Docket Number | Case Number: 24623 |
| Citation | 1937 OK 219,66 P.2d 1064,179 Okla. 557 |
| Parties | COMMONWEALTH CO. v. LOWENHAUPT et al. |
| Court | Oklahoma Supreme Court |
¶0 1. APPEAL AND ERROR - Pleading - Motion to Make More Definite and Certain Largely Addressed to Discretion of Trial Court.
A motion to make more definite and certain is in a large measure addressed to the sound discretion of the trial court, and its ruling thereon will not be reversed in the absence of an abuse of such discretion that results prejudicially to the party complaining.
2. SAME - Order Properly Requiring Petition to Be Made More Definite and Certain.
The plaintiff's cause of action should be stated in the pleadings with such clearness and definiteness as to enable the court to perceive just what issues are to be tried. And an order requiring a petition to be made more definite and certain will not be reversed, where, on the face of the petition, there is a doubt as to the issues presented or as to whether a cause of action is stated or whether defendant is charged with notice of what he is required to defend against.
3. SAME - Dismissal - Erroneous Dismissal of Cause With Prejudice for Noncompliance With Order to Make More Definite and Certain.
The court may dismiss without prejudice where plaintiff fails or refuses to comply with a proper order (section 418, Oklahoma Statutes 1931). Dismissal of cause with prejudice for failure to comply with order to make more definite and certain is error.
Appeal from District Court, Garfield County; O.C. Wybrant, Judge.
Action the Commonwealth Company against Michael Lowenhaupt and Deborah Lowenhaupt for recovery of a broker's commission. From the order sustaining defendants' motion to make more definite and order sustaining defendants' motion to dismiss, plaintiff appeals. Reversed and remanded, with directions.
W.E. Crowe, for plaintiff in error.
McKeever, Elam, Stewart & McKeever, for defendants in error.
¶1 This action was commenced in the district court of Garfield county, Okla., by the Commonwealth Company, as plaintiff, against Michael Lowenhaupt and Deborah Lowenhaupt, as defendants. The plaintiff sought to recover a brokerage commission which it alleged that it was entitled to under certain written agreements and memorandums with the defendants. The defendants filed a demurrer to the plaintiff's petition, which demurrer was sustained by the trial court, and thereupon an amended petition was filed, to which the defendants filed a motion to make more definite and certain. The motion was sustained by the court, and plaintiff filed its second amended petition, to which defendants filed a motion to make more definite and certain, which motion was sustained by the trial court, and thereupon plaintiff filed an amendment to its second amended petition, to which defendants filed a motion to make more definite and certain, which was sustained by the trial court. The plaintiff thereupon elected to stand upon its second amended petition and amendment thereto, and the defendants thereupon moved that the case be dismissed, which motion was sustained by the court and the cause was dismissed with prejudice. The plaintiff appealed and assigns as error the sustaining of the motion to make more definite and certain filed by the defendants requiring the plaintiff to make its second amended petition as amended more definite and certain and in dismissing said cause with prejudice. We shall continue to refer to the parties by their trial court designation.
¶2 The second amended petition as amended alleged that plaintiff is a real estate broker, and that the defendants employed plaintiff to sell a lease upon certain real estate in the city of Enid, Okla.; that the plaintiff performed its part of the agreement and produced a purchaser ready, willing, and able to buy said lease, and that the defendants failed and refused to complete the contract. The defendants filed a motion to make said second amended petition as amended more definite and certain by requiring the plaintiff to state whether or not the defendant Michael Lowenhaupt was authorized by Deborah Lowenhaupt to agree upon the lease form, which, as shown by the pleadings, was to have been satisfactory to the defendants, and further requiring the plaintiff to allege whether or not one Graham Magee, who is alleged to have been the representative of the prospective purchaser, had authority to agree upon said lease form on behalf of said prospective purchaser.
¶3 The primary question...
To continue reading
Request your trial
-
Welch v. Ayres
... ... Cowan, 80 Okl. 72, 194 ... P. 208; Cook v. Search, 100 Okl. 45, 226 P. 1039; ... Walker v. Bahnsen, 115 Okl. 195, 241 P. 740; ... Commonwealth Co. v. Lowenhaupt, 179 Okl. 557, 66 ... P.2d 1064; Cadwell v. Ryan, 184 Okl. 174, 86 P.2d ... 282. It follows that the cause must be reversed ... ...
- Commonwealth Co. v. Lowenhaupt
-
Goins v. Fox
...requiring amendment is not complied with by plaintiffs the suit ought to be dismissed without prejudice as held in Commonwealth Co. v. Lowenhaupt, 179 Okl. 557, 66 P.2d 1064, but asserts that the right of the trial court to dismiss the present action was not founded upon any statute and sho......
-
Larcade v. Culbert
...the following cases: Cook v. Search, 100 Okl. 45, 226 P. 1039; Langley v. Hamilton, 127 Okl. 35, 259 P. 575, and Commonwealth Co. v. Lowenhaupt, 179 Okl. 557, 66 P.2d 1064. We do not agree. The orders of dismissal in these cases were made solely because the pleader refused to comply with th......