363 S.W.2d 58 | Mo. Ct. App. | 1962
Plaintiff appeals from a judgment dismissing its cause of action with prejudice.
The suit originated in -the magistrate court of St. Louis County by the filing of a petition in which the plaintiff alleged that
About two and a half months after the case reached the Circuit Court defendant was granted leave to withdraw its answer and to file a motion for a more definite statement. In his motion, among other specifications, defendant asked that the plaintiff ■ be required to make • its petition more definite and certain " * * * (1) by requiring plaintiff to state whether the contract for services allegedly made between the plaintiff and defendant referred to in paragraph two of plaintiff’s petition was oral or in writing, (2) by requiring plaintiff to state with more definiteness or furnish a bill of particulars in the nature of an account that will specify: (a) The specific services claimed to have been rendered by the plaintiff, (b) The dates the same are claimed to have been performed.” Defendant’s motion was argued and submitted, and was sustained by the- court on August 16, 1961. Plaintiff elected to stand upon its petition, failed to obey the court’s, order, and defendant filed a motion praying that the court dismiss plaintiff’s cause of action, with prejudice, because of such refusal. Defendant’s motion was argued,, submitted, and sustained, and on January 11, 1961, judgment was. entered dismissing, plaintiff’s cause of action with prejudice, at plaintiff’s costs. This appeal followed.
Plaintiff’s line of argument here is. that the court erred and exceeded its jurisdiction in dismissing plaintiff’s cause of action because, first, this being an appeal from a magistrate court the jurisdiction of the Circuit Court was not original but derivative; second, the sufficiency of plaintiff’s petition was determinable, by- the rules. applicable to pleadings.in magistrate courts; and third, its petition was sufficient when measured by such rules. We agree with the first proposition, Joyce v. Central Surety & Insurance Corp., Mo.App., 321 S.W.2d 272; Newman et al. v. Weinstein et al., 230 Mo.App. 794, 75 S.W.2d 871; as well as with the second, Wood v. John Hancock Mutual Life Insurance Co., Mo.App., 241 S.W.2d 802; Butler v. Missouri Insurance Co., Mo.App., 187 S.W.2d 56. But we do not agree with the third. ■ ' -
Pleadings in the magistrate courts are governed by Section ■ 5-17.050 RSMo 1959, V.A.M.S., which contains the familiar rule that “ * * * No -formal pleading upon the párt of either plaintiff or defendant shall be required -; *- * However, the same statute provides- that before any process shall issue the plaintiff shall file “ * * * a statement- * * % of facts constituting the claim upon which the suit is founded -* * - and-it-is further required that “If the suit is founded on an account, a bill of items of the account shall be filed; in all other cases, a statement of facts constituting the claim * * shall be filed * * Thus while'a plaintiff need not file a formal petition; or comply with the technical rules of pleading, it
In the instant case, while plaintiff enumerated some of the services which it claimed it had rendered it is apparent from its'petition that it did not ñamé all, for it alleged that “Such services included, but are not limited to * * * ” those specified. Thus even when measured by Section 517.050 the petition was not a complete “ * * ■ * statement * * * of facts constituting the claim * * Defendant was entitled to know all of the services which plaintiff claimed it had rendered, and the proper method to obtain such information was by a motion for a more definite statement. Midwest Insurance Corporation v. Schroeder, Mo.App., 185 S.W.2d 660; Walters v. Niederstadt, Mo.App., 194 S.W. 514; Barton Lumber Co. v. Gibson, 178 Mo.App. 699, 161 S.W. 357. The court did not err nor did it exceed its jurisdiction in sustaining defendant’s motion for a more definite statement. It would have been a relatively easy matter for the plaintiff to have supplied the information sought, either by amending its petition or by filing a bill of particulars. When plaintiff, for reasons best known to it,, elected to refuse to obey the court’s order, the court was authorized to dismiss plaintiff’s cause of action, with prejudice. Civil Rule 55.34 V.A.M.R. See Burke v. City of St. Louis, Mo., 349 S.W.2d 930.
For the reasons stated the Commissioner recommends that the judgment be affirmed.
PER CURIAM.
The foregoing opinion by DOERNER, C., is adopted as the opinion of the court.
Accordingly, judgment is affirmed.