*1 et al. v. ATHAS et al. COMMISSION LIQUOR CONTROL 441.) (243 P. April 2d Decided No. 7738. *2 Pleading, action affected Conversion S., sec. 13. J. 71 C. See Jur., 53 Am. Trover and. property claimed. asserted interests seq.; 2d L. R. Conversion, et A. secs. Gen., Huggins, Asst. Vernon, Atty. Ira A. Sp. D. Clinton Gen., Atty. Sorensen, for Asst. Gen., ap- Atty. B. Allen pellant. Mulliner, Mulliner, L.H. R.
Mulliner, J. & Prince City, Mulliner, respondent. Lake for Salt Judge. LEWIS, District Liquor Commission Control
This is an appeal dismissing court appellant’s from an order the trial Utah against (1) Chris E. Athas granted”, which relief could he to state a claim “failure *3 (2) and by the court a more definite statement as ordered
“failure to furnish (e) Procedure”. pursuant to 12 of the Rules of Civil in this Lack does not appeal. The defendant participate alleges and were in that Lack Athas issue complaint drug of a retail in and operation the ownership partners Brigham City in Lake known the Street located Salt as store Liquor Pharmacy. During the of the the partnership, period agreement into a written with Commission entered Control Lack, of which Lack was the defendant under the terms liquor and for the Commission authorized to sell distribute Brigham Pharmacy to the provisions at the Street pursuant Liquor Act, Title 46 A. 1943. The of the Control U. C. agreement Commission between Lack the is forth and set admittedly A in full the as Exhibit and is an complaint agreement only Lack an in which contracts as individual (the alleges) and natural Thereafter the person. complaint Brigham to Commission delivered the at the defendants Pharmacy quantities liquor Street certain and the of that terms of to the pursuant took the same possession defendant alleging by that of Exhibit A. The concludes complaint have, liquor de- the and after thereupon sold defendants mand, the failed and the of to account have converted value liquor to their own use. trial contention in of the support
Respondent’s principal ruling fails to state a claim is court’s that by of a nullified the conclusion Athas is alleged. by the facts specific placed Emphasis showing that no contractual upon relationship existed between the Commission and Athas either Lack, an as individual or as a of partner upon retail of Lack Athas in the relationship drug as partners Although allegations only. store these tend to cloud ambiguous legal any theory and make and factual situation in support of the ultimate conclusion conversion pleaded, say we cannot aas matter of law that the conclusion is nullified such facts. A motion to dismiss should not be granted certainty unless it to a would app'ears plaintiff be entitled to no relief under state facts which could proved Cir., of its claim. Asher v. support Ruppa, 7 173 F. 2d gen 10. Where the complaint states a claim in language eral but is not sufficiently definite in re certain to spects answer, enable defendant remedy is a motion for statement, a more definite not a motion to dis miss. Porter Karavas, v. Cir., F. 2d 984. Procedure,
Under the Rules Civil a claim may granted relief can be pleaded recitation *4 conclusions of or fact City law or both. Mails v. Kansas Public Co., C., 562; Service D. 51 F. 1 Barron Supp. Holtzoff, and Procedure, Federal Practice and Rules Ed., 255; 22 Am. Bar Assn. Jnl. 447. This the by alleging, has pleader substance, done a both delivery single defendants after liquor of to a defendant, Lack, to a pursuant contract entered with into Lack alone. We conclude that necessarily no fact pleaded
461 Athas, and that of a conversion the conclusion defeats subsequent and the to dismiss consequently the motion not a claim should failure to state order of dismissal granted or made. have been granting court, of the motion at the time
The trial granted a definite state dismiss, motion for more also 12(e) subsequently dismissed ment under Rule and state failed to furnish such action when plaintiff can are of the that both motions ment. We opinion consistently granted, only when a for it is not be 12(e) claim a motion under Rule states a complaint If a not state can be considered. does complaint properly granted, no responsive a claim which relief can be required is further attack upon plead pleading ing is useless. favored, for a more definite statement are
Motions Co., C., Machinery F. Supp. U. S. v. United D. 76 Shoe 315, evidence from and are not used to obtain properly Montgomery Kingsland, 83 U. pleader, App. v. S. 66, 953; D. C. 166 F. 2d E. I. DuPont Sierocinski v. Co., Cir.,
de Nemours & F. 2d Nor 843. should granted the motion be for the convenience of the parties, C., Railroads, 4 F. U. S. v. Association American D. R. summarily D. but should if made for the dealt with delay, Brinley Lewis, C., v. D. F. purpose Supp. Trial courts have a wide this Rule discretion applying to effectuate the of the Rules. U. S. purpose spirit Railroads, Association American A motion under supra. 12(e) only is made when the properly indefinite, ambiguous, vague allegations or in either factual legal theory moving or to such an extent party reasonably required cannot to frame his responsive plead ing. Brinley Lewis, Nevertheless, v. we believe the supra. clearly instant case to be one where the motion was properly granted. made and incon pleader’s loose and at times sistent “defendants”, use the words “defendant” and his
claiming failing Athas for to account allegation required by A) Exhibit after an as (apparently liquor lead to confusion that “defendants” sold the legal ambiguity theory both in and fact. It was well within grant the discretion of the trial court to the motion for a more definite statement.
We election presume to stand its appellant’s upon ruling complaint was based of the trial primarily upon court that did not state a claim which upon granted. remanded, therefore, relief could be The case is to the lower court with instructions to in accord- proceed ance with the views herein. expresed No costs are awarded.
WADE, CROCKETT, JJ., McDONOUGH concur. WOLFE, (concurring). Chief Justice holding I concur in the the motion to dismiss was granted, I improperly but assume that it meant there- by that conclusions law can be nakedly pleaded without underlying legal facts from which the pleaded conclusion always follows. It was legal permissible to plead effect underlying facts, legal but not the conclusion devoid of the facts from which it is claimed to flow. I think the same is still true.
I holding also concur with the that the motion for a more definite should, statement under circumstances, granted. way is clear for that motion since the plead- ing is held not vulnerable to the motion to dismiss for fail- ure to state a claim granted. relief could be
The case of U. S. v. United Machinery Shoe Co., C.,D. 315, 76 F. Supp. held not that “motions for a more definite statement” are not favored but that under Federal 12(e), 28 U. S. C. A. the practice “narrowly was to granting restrict” of such motions. Certainly such motions have a and, definite if purpose not used delay actually but to clear up pleadings, very are useful. The *6 not, surmise, away necessity I do with the new rules do framing building case the structure a the pleading up Allegata joining of issues. must precede still probata. Certainly, the motion used to obtain evi- should be It dence from the is to the interest of court pleader. the try however, case, the there latent must be no in If a on pleadings. issues is such that pleading certain, it surface definite and but within the appears of reasonable it is scope interpretation revealed that two meanings or more could taken from the be then pleading, the motion for a more definite or statement for clarifica- tion to ambulatory down pin pleading so as not to be would in may order. The appear order obviate pre-trial joining but uncertainties of issues precedes pre-trial order and that should be clear accomplished and definite very which still have a pleadings useful and important place a tendency law suit a despite to and ex- place dispatch all above else. pediency
I have been moved to as I have speak because of what growing I tendency understand to judges of some trial deny discovery motions this kind because of provisions of the new rules which were not meant to be used to obtain necessary information to make a responsive pleading more than a motion for a more definite statement was meant to obtain evidence. Each its has of use. sphere agree
I trial courts have wide discretion in apply- ing 12(e), U. R. P. I C. think may that discretion wisely assisting to the used end of the court and counsel framing clear and definite and- issues preventing com- being plaints from used to trouble the waters with the ob- ject fishing in them.
HENRIOD, J., having disqualified himself, did not par- ticipate.