Cook v. Search

• Decision Date: 23 October 1923
• Docket Number: Case Number: 11342
• Parties: COOK, Adm'r, v. SEARCH et al.
• Court: Oklahoma Supreme Court

1923 OK 812

226 P. 1039

100 Okla. 45

COOK, Adm'r, v. SEARCH et al.

Case Number: 11342

Supreme Court of Oklahoma

Decided: October 23, 1923

Syllabus

¶0 1. Dismissal--Power of District Court--Noncompliance with Orders.

The court may dismiss a case without prejudice for failure or refusal of the plaintiff to comply with a proper order concerning the proceedings in the action. Section 5125, Revised Laws 1910.

2. Same--Failure to File Amended Petition.

Where the trial court sustained a motion to strike and ordered the filing of an amended petition, and plaintiff refuses to comply with said order after full opportunity so to do, the trial court is authorized to dismiss said action without prejudice for disobedience by the plaintiff of an order concerning the proceedings in the action.

3. Same. Record examined, and held, that the trial court did not abuse its discretion in dismissing an action without prejudice for disobedience by plaintiff of an order concerning the proceedings.

T. G. Cutlip and W. S. Pendleton, for plaintiff in error

Goode & Dierker, for defendants in error.

LYONS, C.

¶1 Cook, administrator of the estate of Nichols, deceased, brought suit in the court below against Search, defendant, who had acted as special administrator of the estate of Nichols, deceased, and against the Equitable Surety Company as Search's official surety, to recover the sum of $ 7,100 which it is alleged belonged to the estate and was retained by Search. It appears that Search retained this sum as administrator's fees and allowance to the counsel for the special administrator, under the order of the county court in which the administration proceedings were pending. A contention is made that the petition fails to state facts sufficient to constitute the cause of action. For reasons which are hereafter apparent, it is not necessary for us to pass on this question. It appears that the court below sustained a motion to strike certain allegations of the petition, and that the order of court was not complied with by plaintiff. Thereafter the court allowed time for a compliance with the court's order, making a further order that the petition should stand dismissed in the event the court's order was not obeyed.The plaintiff refused to obey the order of the court, and thereupon the court made an order striking the petition from the files and dismissing the action for failure to comply with the order of the court, pursuant to section 5125, Rev. Laws 1910. This section is in part as follows:

"An action may be dismissed without prejudice to a future action. * * * Fifth. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action."

¶2 In the case of McBride v. Cowan, 80 Okla. 72, 194 P. 208, this section was considered by this court and it was held that the trial court had power to dismiss plaintiff's cause of action upon the grounds enumerated in said section 5125, supra, The court, however in that case held that the record failed to show that the defendant had disobeyed any of the orders of the court concerning the proceedings. In the instant case it is clear from an examination of the record that the plaintiff refused to obey an order of the court, and it is plaintiff's...