Opinion
No. 21451
Opinion Filed November 29, 1932.
(Syllabus.)
Pleading — Dismissal Upon Failure to Amend After Demurrer of Certain Defendants Sustained Held not Effective as to Other Defendants.
Where a petition is filed against several defendants, the sustaining of a demurrer on behalf of some of them and dismissal of the cause on their motion for failure to further plead, affords no cause to dismiss the case as to the other defendants, against whom plaintiff was not in default.
Appeal from District Court, Seminole County; W.J. Crump, Judge.
Action by Nora Tiger against E.A. Spoonmore and others. Motion to dismiss sustained, and plaintiff appeals. Reversed and remanded, with directions.
John L. Cooper, for plaintiff in error.
Anglin Stevenson, for defendants error.
This is an action brought in the district court of Seminole county by Nora Tiger against E.A. Spoonmoore, E.A. Cameron, B.L. Price, O.G. Spears, Kingwood Oil Company, and others to quiet title to certain land in that county.
Defendants Spoonmoore and Cameron filed a joint general demurrer to plaintiff's petition, which was by the court sustained on September 14, 1927, and plaintiff was allowed 10 days in which to file an amended petition. On October 3, 1927, plaintiff filed a motion to set aside the order sustaining the demurrer to defendants Spoonmoore and Cameron, which motion was overruled on October 11, 1927, and plaintiff granted 13 days thereafter within which to file an amended petition. Plaintiff failed to file an amended petition within the time allowed by the court, and on October 28th, these defendants filed a motion to dismiss the cause for failure to comply with the order of the court and for failure on the part of plaintiff to prosecute her cause of action. This motion was sustained by the court, and an order entered thereon dismissing the action. At the time this latter order was entered, there were pending and undisposed of separate demurrers to plaintiff's petition by defendants Price and Spears, and a motion and special appearance on behalf of the Kingwood Oil Company to quash the service. On August 1, 1929, the demurrers of defendants Price and Spears were presented to Hon. Asa Walden, assigned judge, who sustained the same and granted plaintiff 10 days' additional time in which to file an amended petition as to these defendants. Plaintiff complied with this order and filed an amended petition on August 10, 1929. Defendants Price, Spears, and Kingwood Oil Company thereafter filed a motion to vacate the order entered on August 1, 1929, sustaining these demurrers and granting plaintiff further time to plead, on the ground that the order entered on the motion of defendants Spoonmoore and Cameron to dismiss the cause for failure to prosecute constituted dismissal of the cause as to all defendants. This motion was sustained on December 2, 1929, by Hon. W.J. Crump, assigned judge, and the cause of action dismissed as to all defendants.
Plaintiff has appealed and assigns this ruling as error. She contends that, while the case was properly dismissed as to Spoonmoore and Cameron, the order of November 14, 1927, dismissing the cause for failure to prosecute, is limited to these defendants, and that, notwithstanding that order, the case was still pending as to other defendants. With this contention we agree. The order of dismissal was entered on motion of defendants Spoonmoore and Cameron alone. At the time it was entered, there were pending pleas undisposed of on behalf of other defendants. They did not join in the motion to dismiss, and plaintiff was not at that time in default as to them. She had a right to prosecute her cause of action against those defendants, notwithstanding she abandoned it as to defendants Spoonmoore and Cameron. The court was without authority, under their motion, to dismiss the cause as to defendants Price and Spears. The order of dismissal did not affect the cause of action as to them. Williamson v. Joyce (Cal.) 74 P. 290; Dyal v. Hays (Ark.) 12, S.W. 874; Byron v. Gunn (Ga.) 35 S.E. 649.
Neither party has discussed the question of the sufficiency of plaintiff's amended petition to state a cause of action, and we express no opinion thereon.
The judgment is reversed and the cause remanded, with directions to reinstate the cause of action as to defendants Price and Spears and the Kingwood Oil Company, and for further proceedings not inconsistent with the views herein expressed.
CLARK, V. C. J., and RILEY, CULLISON, SWINDALL, ANDREWS, McNEILL, and KORNEGAY, JJ., concur. LESTER, C. J., absent.