17 Ind. 142 | Ind. | 1861
Silvers, ivho ivas the plaintiff, brought this action against the railroad companj^ alleging hi his complaint, that in September, 1853, he was induced by the false and fraudulent representations of said company, made through her agent, one Edwin MoArthur, to subscribe 650 shares of her capital stock y and, in payment therefor, to convey to her certain real estate, which is described in the complaint, and which was then, and still is, of the value of $32,561. The •representations of which the plaintiff complains, as being false .and fraudulent, are thus alleged: 1. That said company, by her agent, represented such capital stock to be worth 90 cents on the dollar, and that if the plaintiff would subscribe, he .would receive dividends on his stock as soon as the railroad was finished, and that the same would be finished within two years. 2. That the Hamilton and Dayton Railroad,
The record contains a bill of exceptions, which shows that the defendant, upon the overruling of the demurrers, viz., on'Augitst 13, 1856, moved the Court for an order on the plaintiff, directing him to furnish the defendant with the inspection of the certificates of the stock by him subscribed, “ by Friday the 15th of the same month, in the afternoon which motion was founded on the pleadings alone, (there being no evidence of notice to the plaintiff to produce the certificates,) and was, on said pleadings, allowed, and such inspection ordered. And afterward, on Friday evening, August 15, the defendant moved that the plaintiff then be required to comply with said order, and the plaintiff failing to comply, and showing no reason against complying, the Court thereupon, on the defendant’s motion, and for such non-compliance alone, dismissed the suit, without prejudice, &c., and rendered final judgment against the plaintiff.
The errors assigned by the appellant, are as follows: 1. The Court erred in malting the order for inspection, &c. 2. It was error to dismiss the suit,. on account of his noncompliance with the order. And, for cross error, the appellee assigns the following: “The Court erred, in overruling
The second error assigned, relates to the action of the Court, in dismissing the suit. Sections 305 and 306, to which we have referred, point out the consequences of failing to comply with an order of the Court, made under them. These provisions, as we have seen, do not authorize a dismissal of the suit. But there is another section, which says, “An action may be dismissed without prejudice, by the Court, for disobedience, by the plaintiff, of an order concerning the proceedings in the action.” 2 R. S., § 363, p. 120.
Now, the three sections thus referred to, are not in conflict, and may be so construed that each may stand and be effective. And this being done, the result is, that the Court may, for disobeying an order to produce papers, &c., allow ‘parol evidence tó be given of their contents,” or may “exclude the evidence, or punish the party refusing,” or, the plaintiff having disobeyed the order, his suit may be dismissed, without prejudice. If this construction be correct, and we think it is, the Court, in its dismissal of the suit, committed no error.
As the judgment in- this case must, over the appellant’s assignments of error, be affirmed, the cross error will not be noticed.
Per Curiam. — The judgment is affirmed, with costs.