Lovering v. Webb Publishing Co.

• Decision Date: 16 April 1909
• Docket Number: Nos. 16,151-(119).,s. 16,151-(119).
• Citation: 108 Minn. 201
• Parties: JAMES L. LOVERING v. WEBB PUBLISHING COMPANY.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 201

108 Minn. 201

JAMES L. LOVERING v.WEBB PUBLISHING COMPANY.¹

Nos. 16,151-(119).

Supreme Court of Minnesota.

April 16, 1909.

Action in the district court for Ramsey county for a complete accounting between plaintiff and defendant, for the purpose of ascertaining the true and accurate number of all copies of the "Mail Order Monthly" printed by defendant between January 1, 1903, and April 1, 1908.After order overruling the demurrer to the complaint was sustained upon the former appeal (106 Minn. 62), defendant moved to make the complaint more definite.From an order, Kelly, J., directing that plaintiff make his amended complaint more definite and certain in the respects stated in the first paragraph of the second opinion, he appealed.A motion to dismiss the appeal was denied.Affirmed.

William G. White, for appellant.

B. H. Schriber and W. W. Cutler, for respondent.

On April 16, 1909, the following opinion was filed:

PER CURIAM.

On defendant's motion the court below made an order requiring plaintiff to make his complaint more definite and certain in certain respects, and that in default thereof the complaint be stricken out.Plaintiff appealed, and defendant moves to dismiss the appeal, on the ground that the order is not appealable.

The motion is denied.The order is in effect one striking out the complaint, and not only "involving the merits of the action or some part thereof," but also "determines the action, and prevents a judgment from which an appeal might be taken," within the meaning of subdivisions 3 and 5, § 4365, R. L. 1905, and is therefore appealable.Starbuck v. Dunklee, 10 Minn. 136 (168), 88 Am. Dec. 68;Kingsley v. Gilman, 12 Minn. 425 (515);Vermilye v. Vermilye, 32 Minn. 499, 18 N. W. 832, 21 N. W. 736;Floody v. Chicago, St. P., M. & O. Ry. Co., 104 Minn. 132, 116 N. W. 111.

Such an order is entirely different from one denying a motion to strike out.An order of that kind is not appealable.American Book Co. v. Kingdom Pub. Co., 71 Minn. 363, 73 N. W. 1089;State v. O'Brien, 83 Minn. 6, 85 N. W. 1135;Pugh v. Winona & St. P. R. Co., 29 Minn. 390, 13 N. W. 189, was overruled in the O'Brien case, last above cited.That an order striking out a complaint involves the merits of the action, and in effect determines the action, is quite clear.When the complaint is stricken out, the action ends, and no judgment can be entered therein.Hence the only remedy is by appeal from the order striking out.

Motion denied.

1.Reported in 120 N. W. 688;121 N. W. 911.

On June 18, 1909, the following opinion was filed:

LEWIS, J.

The complaint in this action was demurred to on the ground that it did not state facts sufficient to constitute a cause of action, and the order overruling the demurrer was affirmed by this court upon a former appeal.Lovering v. Webb Publishing Co., 106 Minn. 62, 118 N. W. 61.After the cause was remanded, and before answering, defendant gave notice of a motion upon an order to show cause before the trial court why the complaint should not be made more definite and certain, and at the hearing plaintiff moved to strike the motion papers and order to show cause from the files.The court denied plaintiff's motion, and ordered "that plaintiff make his amended complaint more definite and certain by setting forth therein as follows: The price which he claims he agreed to pay defendant for the publication of the periodicals mentioned in the complaint, and the total amount of money which plaintiff claims to have paid defendant on account of said publication, and the total number of copies of the periodical mentioned in the complaint which plaintiff claims that defendant has published for said plaintiff."The motion was made under section 4144, R. L. 1905, which in part reads: "* * * When a pleading is double, or does not conform to the statute, or when the allegations thereof are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may strike it out on motion, or require it to be amended."

The complaint states that from January 1, 1903, until April 1, 1908, respondent company each month printed and mailed through the United States post-office at St. Paul a certain publication for appellant, "pursuant to a contract duly entered into between the plaintiff and the defendant whereby defendant covenanted, contracted, and agreed with the plaintiff that it would print said monthly publication, and that it would likewise mail and deposit the same and all copies thereof in the United States post-office in said city of St. Paul.In and by said contract the defendant further covenanted and agreed that it would render to the plaintiff monthly invoices showing the true, accurate, and correct number of the copies of said `Mail Order Monthly' printed and mailed by it during each and every month pursuant to said contract and so long as the same remained in force."The complaint further states that appellant agreed to pay respondent"for the accurate and correct number of copies of said `Mail Order Monthly' actually printed and mailed by it, the said defendant, while said contract remained in force;" that respondent purported to render statements of the correct number of copies printed and mailed; that appellant relied upon such statements as accurate, believed the same to be true, and paid accordingly the amount purporting...