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McGavin v. Preferred Insurance Exchange

Supreme Court of Utah
Feb 5, 1958
320 P.2d 1109 (Utah 1958)

Opinion

No. 8714.

February 5, 1958.

Appeal from the Third District Court, Salt Lake County, Ray Van Cott, Jr., J.

Paul E. Reimann, Salt Lake City, for appellant.

W.J. O'Connor, Jr., Ray, Quinney Nebeker, Salt Lake City, for respondents.


Appeal from an order dismissing plaintiff's amended complaint without prejudice. Remanded with instructions. No costs awarded.

The dismissal was bottomed on failure to state a claim on which relief could be granted. The complaint is somewhat prolix and is to a great extent a recitation of evidence, rather than being a short, concise statement of a claim, as contemplated by our rules of procedure. It sounds partly in contract and partly in deceit, with no separate statements in counts or paragraphs as independent claims. The claims for general damages and punitive damages are mingled, the former for breach of contract and the latter presumably arising out of tort. Without separation as a distinct claim, there is a hint in some of the language of a claim for services performed not arising out of an express promise.

Rule 8(a) and 8(e)(1), Utah Rules of Civil Procedure.

Since the dismissal was without prejudice, it seems obvious that whatever claim plaintiff has would be pursued in another action, if not in this one. It would seem reasonable and sensible, therefore, and would expedite the matter considerably, if plaintiff were permitted to redraft his pleadings, within the spirit of Rule 15, U.R.C.P. along lines suggested in this opinion. The lower court is ordered to set aside the judgment and permit an amendment, on condition, however, that if such amendment is not made within such reasonable time as is hereafter given by the trial court, the action will be dismissed without prejudice, as before.

McDONOUGH, C.J., and WADE and WORTHEN, JJ., concur.


I dissent. The question is whether the trial judge abused his discretion in granting a motion to dismiss a complaint which he determined to be "so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." After the plaintiff had once amended, as he had done here, and the complaint still has the faults enumerated in the main opinion, I think it was within the court's discretion to dismiss without prejudice, and it was not mandatory to grant further leave to amend. It is elementary that unless there is a clear abuse of discretion the trial court's ruling should stand.

Rule 12(e), U.R.C.P.

As to court's discretion to dismiss for defective pleadings see 2 Moore's Federal Practice, 2d Ed. p. 2307.


Summaries of

McGavin v. Preferred Insurance Exchange

Supreme Court of Utah
Feb 5, 1958
320 P.2d 1109 (Utah 1958)
Case details for

McGavin v. Preferred Insurance Exchange

Case Details

Full title:GORDON C. McGAVIN, PLAINTIFF AND APPELLANT, v. PREFERRED INSURANCE…

Court:Supreme Court of Utah

Date published: Feb 5, 1958

Citations

320 P.2d 1109 (Utah 1958)
7 Utah 2