Lehfeldt Co. v. Justice

• Decision Date: 09 February 1920
• Docket Number: 4096.
• Citation: 187 P. 912,57 Mont. 221
• Parties: LEHFELDT CO. v. JUSTICE.
• Court: Montana Supreme Court

187 P. 912

57 Mont. 221

LEHFELDT CO. v. JUSTICE.

No. 4096.

Supreme Court of Montana

February 9, 1920

Appeal from District Court, Phillips County; John Hurly, Judge.

Action by the Lehfeldt Company against J. R. Justice. Judgment for defendant, and plaintiff appeals. Affirmed.

D. J. Sias, Jr., of Chinook, and Norris & Hurd, of Great Falls, for respondent.

HOLLOWAY, J.

This action was brought to recover upon an assigned claim for work and labor performed, materials furnished, and money advanced by Henry Robinson at the special instance and request of defendant and for his use and benefit. Defendant moved the court to require plaintiff to separately state and number the three causes of action alleged to be commingled in the complaint. The motion was sustained and plaintiff granted 20 days within which to comply with the order. Thereafter additional time was secured, and on July 3d a second complaint was filed, which, however, did not differ in any material respects from the first, and did not comply with the order. On motion of defendant, this second complaint was stricken from the files and the action dismissed. From the judgment of dismissal, plaintiff appealed.

When the order to separate was made, plaintiff had the choice of standing on his original complaint and testing the validity of the order, or complying with the order. Apparently, the latter alternative was chosen, for plaintiff not only availed himself of the time granted for compliance, but secured additional time "to file an amended complaint." Having thus made its election, the duty to comply with the order was imposed upon plaintiff, and, to an equal extent, the duty was imposed upon the court to enforce compliance or violate its own order. The court refused to stultify itself and dismissed the action, and in doing so was clearly correct. O'Connor v. C., R.I. & P. Ry. Co., 75 Iowa, 617, 34 N.W. 795; Eisenhouer v. Stein, 37 Kan. 281, 15 P. 167; Miskimmons v. Moore, 10 Wyo. 41, 65 P. 1000; Loghry v. Fillmore County, 75 Neb. 158, 106 N.W. 170; 31 Cyc. 649.

The judgment is affirmed.

Affirmed.

BRANTLY, C.J., and MATTHEWS, J., concur.

HURLY, J., being disqualified, takes no part in the foregoing decision.

COOPER, J., being absent, takes no part in the decision.