Eisenhouer v. Stein

Opinion by

The plaintiff filed in the district court his petition, the first item of which is: “ October 24, 1874, to balance due as per settlement, $73.03;” then follows a very long open itemized account, none of the items of such account being a part of the $73.03. The defendant filed his motion to compel the plaintiff to separately state and number his causes of action contained in the petition. The court sustained his motion; plaintiff refused to amend, and elected to stand upon his petition; the defendant then obtained twenty days from the rising of the court to answer the petition of the plaintiff. A few days afterward, on the motion of the defendant, the court vacated the order permitting the defendant to answer, and dismissed this cause without prejudice to a future action, the plaintiff being present and objecting. The plaintiff complains of the decision of the district court in compelling him to separately state and number *282his causes of action, aud also of the order dismissing the action. The petition embraces a cause of action on a settlement, and also one upon an open account. These constitute two separate and distinct causes of action, aud the order of the court compelling him to separately number aud state them was correct. When the plaintiff refused to amend, and determined to stand upon his petition, he compelled the trial court either to violate its own order and try the case in disregard of the long-established rules of practice, or to dismiss the action without prejudice. The trial court very properly refused virtually to nullify its own reasonable decision, and dismissed the action. This was right. We therefore recommend that the judgment of the court below be affirmed.

By the Court: It is so ordered.