Lehfeldt Co. v. Justice , 57 Mont. 221 ( 1920 )

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

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 twenty days within which to comply with the order. Thereafter additional time was secured, and on July 3 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. Prom the judgment of dismissal, plaintiff appealed.

When the order to separate was made, plaintiff had the choice [1] 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’Conner v. Chicago, R. I. & P. Ry. Co., 75 Iowa, 617, 34 N. W. 795; Eisenhouer v. Stein, 37 Kan. 281, 15 Pac. 167; Miskimmons v. Moore, 10 Wyo. 41, 65 Pac. 1000; Loghry v. Fillmore County, 75 Neb. 158, 106 N. W. 170; 31 Cyc. 649.)

The judgment is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Matthews concur. Mr. Justice Hurly, being disqualified, and Mr. Justice; Cooper, being absent, take no part in the foregoing decision.