Opinion
No. 7389.
February 12, 1948.
Appeal from Error to District Court, 7th Judicial District, Canyon County; Hon. Thos. E. Buckner, Judge.
Action by White Earth Products Company, a corporation, against the Idaho First National Bank, Caldwell Branch, and others. From a judgment of the district court dismissing the action after sustaining special demurrers of the defendants, the plaintiff appeals.
Judgment affirmed.
Cleve Groome, of Caldwell, for appellant.
A person may stand on his complaint after demurrer sustained and it is error to dismiss the action if the complaint states a cause of action on any grounds. Smith v. Oregon Short Line R. Co., 47 Idaho 604, 277 P. 5 70-572; I.C.A. Section 7-705; I.C.A. Section 7-706.
Karl Paine, Edwin Snow, and Walter M. Oros, all of Boise, for respondent Bank.
The power of the lower court to dismiss an action after a pleader has declined to amend his faulty pleading is beyond question in this state; the fault can be other than failure to state a cause of action. Kruger v. St. Joe Lumber Co., 11 Idaho 504, 83 P. 695; Phy v. Selby, 35 Idaho 409, 207 P. 1077; Chambers v. McCollum, 47 Idaho 74, 272 P. 707.
Appellant cites 7-705-6, I.C.A., as forbidding the dismissal herein. The interpretation of said sections by this Court does not support the contention. Greenhow v. Whitehead's, Inc., 67 Idaho 262, 175 P.2d 1007.
F.W. Jarvis, of Caldwell, for respondents Crookham.
The filing of an original complaint and successive sustained demurrers and motions to strike and amended complaints, culminated in a third amended complaint, to which a motion to strike one paragraph thereof, was sustained. The general demurrer of respondents Crookhams was not sustained, but the special demurrers of all respondents for ambiguity, uncertainty, and unintelligibility were sustained, and upon appellant's expressed declination to plead further, the court refrained from ruling on a motion to separately state, and entered judgment of dismissal — hence the appeal.
Appellant's contention is evidently to the effect that if the complaint states some cause of action and a general demurrer challenging it on that ground is not sustained, judgment of dismissal may not be entered upon an order sustaining demurrers for ambiguity, uncertainty and unintelligibility. Though it is somewhat anomalous, appellant does not argue the complaint was not deficient in the particulars questioned by the special demurrers. It would thus appear the sole issue before us is as thus expressed by respondent Bank:
"It does not discuss the merits of the demurrer or motion, but rests its appeal solely upon the proposition that the order of dismissal was erroneous because its third amended complaint states a cause of action. Thus is presented for decision here the question of the Court's power to dismiss the action. The question does not involve the right of appellant to file a fourth amended complaint. Appellant did not ask permission to amend, but elected to stand upon the third amended complaint."
Section 5-607, I.C.A., enumerates seven distinct grounds of demurrer, the seventh being —
"That the complaint is ambiguous, unintelligible or uncertain."
Such ground is not comprehended within a general demurrer. Palmer v. Utah etc. Ry. Co., 2 Idaho (Hasb.) 315, at page 975, 318, 13 P. 425.
Thus, ground seven to be effective upon refusal to plead further, with designated defects extant in the pleading, must subject the action to dismissal and that is the recent definitive announcement by this court on this question:
"However, if a special demurrer on the ground of ambiguity, unintelligibility or uncertainty is correctly sustained in the trial court, and a general demurrer, if there be one, is overruled, the trial court specifying which grounds are sustained and which are overruled, an appellant who sees fit to stand upon his complaint after an opportunity to amend, will be bound by the judgment of dismissal without being given another opportunity by this court so to do." Chandler v. Drainage Dist. No. 2, Idaho, 187 P.2d 971, 975.
Since appellant by silence inferentially concedes the complaint is subject to the criticism aimed at it by the special demurrers, we do not, as it has not, consider the merits of this feature, but passing upon the sole point raised by appellant, sustain the judgment of the trial court and it is so ordered. Costs awarded to respondents.
HOLDEN, MILLER, and HYATT, JJ., and SUTPHEN, District Judge, concur.