Rhodes v. Crites

• Decision Date: 09 March 1962
• Docket Number: No. 35150,35150
• Citation: 113 N.W.2d 611,173 Neb. 501
• Parties: Paul E. RHODES, Appellant, v. Albert W. CRITES, Norval E. Houston, Maryland Casualty Company, Rush Clarke, Clarence S. Beck, and Norval E. Houston, Sheriff of Morrill County, Nebraska, Appellees.
• Court: Nebraska Supreme Court

Page 611

113 N.W.2d 611

173 Neb. 501

Paul E. RHODES, Appellant, v. Albert W. CRITES, Norval E. Houston, Maryland Casualty Company, Rush Clarke, Clarence S. Beck, and Norval E. Houston, Sheriff of Morrill County, Nebraska, Appellees.

No. 35150.

Supreme Court of Nebraska.

March 9, 1962.

Syllabus by the Court.

1. By statute, when the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment.

2. If the allegations are so indefinite or uncertain that the precise meaning is not apparent, the remedy of the other party is an application to the court to have the pleading in that particular made more definite and certain.

3. An order of the district court requiring a petition to be made more definite and certain will be sustained on appeal unless it clearly appears that the court abused its discretion.

4. Section 25-2221, R.S.Supp., 1959, removed the specific prohibition against courts being open on certain named days, and the matter is left to the discretion of the court as to whether said court will be open on Saturdays to hear such matters as might come before it.

Paul E. Rhodes, pro se.

James L. Macken, Bridgeport, Clarence A. H. Meyer, Atty. Gen., Gerald S. Vitamvas, Deputy Atty. Gen., for appellees.

Heard before CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ., and SCHEELE, District Judge.

MESSMORE, Justice.

This is an appeal from an order of the district court for Morrill County, Nebraska, dismissing the plaintiff's action after the plaintiff failed to file an amended petition in compliance with the order of the court to make his petition more definite and certain.

The plaintiff's petition was filed in the district court for Morrill County on August 30, 1960. The pertinent allegations of the plaintiff's petition were in substance as follows: That on January 11, 1960, at Bridgeport, Morrill County, Nebraska, the defendants and Clarence S. Beck, through his special assistant, Rush C. Clarke, unlawfully maliciously, and with intent to injure the plaintiff, did by force compel and plaintiff to enter the county jail of Morrill County, and later the county jail of Scotts Bluff County, on said day, in Bridgeport, Morrill County, and Gering, Scotts Bluff County, and did transport said plaintiff by force, against his will, from Morrill County into Scotts Bluff County and therein imprison the plaintiff in the county jail of Morrill County and in the county jail of Scotts Bluff County, and then and there detained the plaintiff and restrained him of his liberty for a period of approximately 22 hours, without reasonable cause and without right or authority to do so, against the will of the plaintiff, whereby the plaintiff was injured in his credit and by the unfavorable publicity that was secured therefrom; that the plaintiff was prevented from attending his necessary affairs and business during that time, and was forced to spend money for counsel fees in securing his discharge from said unlawful imprisonment; that the plaintiff was forced to spend his own time in securing said discharge from the unlawful imprisonment; and that because of said false and unlawful imprisonment the plaintiff suffered embarrassment and humiliation. The plaintiff prayed for damages.

On September 26, 1960, the defendants filed in the district court for Morrill County a motion requiring the plaintiff to make his petition more definite and certain, setting forth certain particulars with which the defendants claimed the plaintiff should be required to comply.

On December 19, 1960, the plaintiff filed an application for transfer of trial to another judge on account of the bias and prejudice of the presiding judge, supported by an affidavit of the plaintiff.

On the same date, December 19, 1960, the plaintiff's motion to transfer this case for hearing by another judge was overruled.

The motion of the defendants to require the plaintiff to make his petition more definite and certain was overruled in part and in part sustained on the same date. The parts of the motion to require the plaintiff to make his petition more definite and certain which were sustained are as follows: To set forth in unnumbered paragraph 2 of the petition the particular facts showing in what manner and by what means the defendants, and each of them, participated in the use of force against the plaintiff causing him to enter the county jail of Morrill County; to set forth in unnumbered paragraph 2 of the petition the particular facts showing in what manner and by what means the defendants, and each of them, participated in the use of force against the plaintiff causing him to enter the county jail of Scotts Bluff County; and to set forth in unnumbered paragraph 2 of the petition the particular facts relied upon to show in what manner and in what way the said imprisonment was false and unlawful.

On December 27, 1960, the plaintiff filed a motion for new trial or for rehearing.

On March 29, 1961, there was filed in the district court for Morrill County, a notice as follows: 'You are hereby notified that the Hon. Edmund Nuss will be in Bridgeport on Saturday, April 15, 1961, and I will on that date ask him to take up all matters pending in the above case, at 10:00 o'clock A.M. on that date or as soon thereafter as it may be heard. Dated this 24th day of March, 1961. ALBERT W. CRITES, et al., Defendants By /s/ James L. Macken James L. Macken, Their Attorney.' There was a return relating to the service of the above notice, as follows: 'I hereby certify that on March 27th, 1961, I served the foregoing notice upon Paul E. Rhodes, plaintiff, by delivering to him personally in Lancaster County, Nebraska, a true copy thereof.' This return was signed by Kenneth W. Nelson, deputy, for Merle C. Karnopp, sheriff, and indicated that it was received at 9:27 a. m., on March 27, 1961.

On April 14, 1961, the plaintiff filed a motion for continuance. On April 25, 1961 a journal entry dated April 15, 1961, was filed, in which the plaintiff's motion for continuance was overruled, and the plaintiff's motion for new trial or rehearing was overruled. The plaintiff was allowed 30 days from date to file his amended petition as authorized by the order of December 19, 1960. It was ordered that if such amended petition was not filed within 30 days from date (April 15, 1961) the case should stand dismissed. The above orders were made by Judge Edmund Nuss, and a copy of the orders was handed to Paul E. Rhodes on April 21, 1961, by John B. Greenholtz, deputy warden of the State Penitentiary.

On June 8, 1961, the plaintiff filed a notice of appeal directed to the orders of the district court of December 5, 1960, December 19, 1960, and April 15, 1961.

On August 15, 1961, there was filed in the district court for Morrill County the following journal entry: 'Now on this 15th day of August, 1961, * * * the court observes that plaintiff has failed to file an amended petition as required by the journal entry of this court entered April 15, 1961, and the court finds that the case should be dismissed, as of May 16, 1961. IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that this case be, and it hereby is, dismissed at plaintiff's costs. BY THE COURT: /s/ Edmund Nuss District Judge.'

On August 17, 1961, there was filed in the district court for Morrill County a notice, and return made on such notice, as follows: 'NOTICE TO PAUL E. RHODES: You are hereby notified that Judge Edmund Nuss will be in Bridgeport on Tuesday, August 15, 1961, at 10:00 o'clock A.M., Mountain Standard Time, and at that time he will be asked to take up and hear all matters pending in all cases in which you are interested as a party or as an attorney. Dated this 15th day of July, 1961. /s/ James L. Macken County Attorney /s/ James L. Macken Attorney'. The return was made on this notice as follows: 'I certify that the foregoing notice was personally served on Paul E. Rhodes on the 28th day of July, 1961. Merle Karnopp, Sheriff, By /s/ Leonard R. Schafer Deputy.'

The plaintiff filed his notice of appeal herein on September 11, 1961.

There is also a bill of exceptions showing trial before the Hon. Edmund Nuss, district Judge, at Bridgeport, Nebraska, on April 15, 1961. It shows notice to the plaintiff, Paul E. Rhodes, that the Hon. Edmund Nuss would be in Bridgeport on Saturday, April 15, 1961, to take up all matters pending in the above case at 10 o'clock a. m., on that date or as soon thereafter as it might be heard. This was dated March 24, 1961. The return was made on this notice as follows: 'I hereby certify that on March 27th, 1961, I served the foregoing notice upon Paul E. Rhodes, plaintiff, by delivering to him personally in Lancaster County, Nebraska, a true copy thereof. Dated the day above written. Merle C. Karnopp Sheriff By Kenneth W. Nelson Deputy.'

The bill of exceptions also shows that the motion for rehearing should be overruled, and that the plaintiff should be given 30 additional days in which to file an amended petition if he so desired. This matter was before the Hon. Edmund Nuss who presided in the district court for Morrill County on April 15, 1961. (Exhibit No. 1 is the notice to show proof of service and was received in evidence.)

The question presented by this appeal is whether or not the action of the district court in dismissing the action of the plaintiff, after the plaintiff's failure to file an amended petition pursuant to the order of the trial court, was a proper order.

Section 25-833, R.R.S.1943, provides in part: '* * * when the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment.'

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