Board of Commissioners v. Hoaglin , 5 Kan. 558 ( 1870 )

By the Court,

Valentine, J.

On the tenth day of September, 1866, the plaintiff in error brought an action in the district court of Jackson county against the defendant in error, for the sum of 12,299.86.

On the 12th day of April, 1867, the plaintiff, with leave of the court, filed an amended petition.

The defendant then moved the court to compel the plaintiff to specifically set forth and number the different causes of action set forth in the petition. The court sustained the motion on the 13th day of April, 1867, and gave the plaintiff leave to make such amendment in ninety days. To this ruling of the court the plaintiff excepted. Afterwards on the 12th day of July, 1867, the plaintiff filed a second amended petition; and then the defendant filed another motion to compel the plaintiff to set forth and number his several causes of action, and also to compel the plaintiff to comply with the aforesaid order of the court. On the 5th day of October, 1867, the court, on the hearing of said motion, found that the plaintiff had not complied with said order and thereupon dismissed the plaintiffs action, to which' ruling of the court the plaintiff excepted.

The questions involved in this, case are as follows :

' 1. Did the petition of the plaintiff contain several causes of action not separately stated and numbered ?

2. If it did, had the court power to require by an order that the same be separately stated and numbered ?

3. And if the court had such power, did the plaintiff fail to comply with said order? *

. 4. And if the plaintiff did so fail, had the court power to dismiss the plaintiff’s action for that reason? "We think that all these questions must be answered in the affirmative.

pmujutoscausea^ofaction, The orig^nal petition, and the amended petitions, in substance, state that the defendant was probate judge of Jackson county from January 1st, 1860, to the timé this suit was commenced, and that while he was so acting as probate judge, the. county board of that county, without any authority of law, issued to him divers and sundry county orders, on which he drew the money they called for from the county treasury and converted the same to his own use.

The original petition and the amended petitions each contain two counts. The first count of each charges the defendant with receiving certain of said county orders for salary, fees, etc., and shows that he received them from July 2d, 1860, to January 4th, 1865, at over twenty different and distinct times, and during three different terms of his office as probate judge. The second count of each charges the defendant with receiving other of said county orders for relief of the poor; and shows that he received them from November 7th, 1863, to November 10th, 1865, at seven different and distinct times, and during a part of two different terms of his said office. It is claimed by the plaintiff, that all these county orders were issued without any authority of law; and that it was illegal for the defendant to draw the money ón them and convert the same to his own use. If this is true, it seems to us clear, beyond any doubt, that each separate and distinct illegal conversion of the public funds, furnished a distinct and separate cause of action.

Cot??“XuidT:ibe The code of civil procedure provides [§ 95 Comp. L., 1391 that “where the petition contains more than one cause of action, each shall be separately stated and numbered,” and it is certainly the duty of the court to enforce the law.

DlSailSSAL OF AN COTi™’)ytl10 The code also provides [§ 382, Comp. L., 187] that “an action may be dismissed without prejudice to a future action. * * * * Fifth. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action.” "We suppose that the word “proceedings” in this connection means any proceedings in the case, notwithstanding the ingenious argument of the counsel for plaintiff in error. [See 4 Fas., 501, 502.] It would be strange if it did not; strange indeed if the court has authority to make an order, and no authority to enforce it; and stranger still, if the plaintiff may bid defiance both to the law and the court.

The decision of the court below is affirmed.

All the justices concurring.