In this case the majority of the court hold that the trial court erred in requiring the plaintiff to elect between two causes of action stated in his complaint. In that conclusion I fully concur.
They further hold that the complaint was rightfully dismissed. In that conclusion I do not concur.
This last conclusion seems to be based upon two propositions: first, that the order to elect though erroneous was "the law of the case" until revoked or reversed, and therefore should have been obeyed; second, that the trial court had the power to dismiss the complaint for noncompliance with the order. I grant the first proposition but I deny the second. That the trial court had ample power in some way to enforce this order, I concede; whether it had the power to dismiss the complaint for refusal to obey is the only point in dispute. It unquestionably had power to hear and finally determine the cause. Did it also have the power to refuse to hear and determine for noncompliance with its ruling? In other words, did it have power to render the particular judgment of which the plaintiff complains? Unless it had, then its judgment of dismissal was certainly erroneous, and perhaps void, notwithstanding the fact that it had jurisdiction over the parties, the subject-matter and the cause. Windsor v. McVeigh, 93 U.S. 274.
The power to compel a party to submit to a nonsuit or a default, and to dismiss a complaint, for mere noncompliance with some rule of practice or procedure, or some order made incidentally in a particular case, is certainly a very important one. In this state where such power exists it has, so far as *Page 569 I am aware, invariably been conferred specifically by some statute or general rule of practice made in pursuance of law; and when thus conferred the law or rule conferring the power has uniformly prescribed the particular circumstances under which it might be exercised. This power has been conferred as occasion seemed to demand from a very early period. Thus, in the Revised Statutes, 1808, such power appears to have been conferred as follows: In 1667, to nonsuit for want of appearance, p. 34; in 1709, to render judgment against a defendant for failing "to make his plea or join issue," p. 551; in 1713, to default for nonappearance of defendant, p. 33; in 1754, to nonsuit for failure to give bond to prosecute, p. 39; and in 1734, to nonsuit in an action for usury for refusing to be examined on oath when required, p. 679. In 1852, power to nonsuit was specially given for failure to make out a primâfacie case; Public Acts, 1852, chap. 4; in 1871, to nonsuit in a flowage case on failure to pay costs and expenses when ordered, § 1225. General Statutes, 1888; in 1878, to nonsuit on failure to give a "new bond" in replevin, § 1329; in 1883, to nonsuit on failure to give a "new indorser" in an action on a probate bond, § 899; and in 1889, to nonsuit or default on failure to disclose. Public Acts, 1889, chap. 22.
This power has also in a very few instances been conferred by the general rules of practice made by the judges pursuant to law, as may be seen by reference to such rules hitherto or now in force. There are doubtless other instances where the power in question has been thus specially conferred, but the above are I think sufficient to show that in this state the Superior Court has not been deemed to possess such power unless it was thus specially conferred. Indeed, the power to confer it even in this way has been questioned or doubted by the bench and the profession in some instances. SeeHoyt v. Brooks, 10 Conn., 190, andNaugatuck R. R. Co. v. Waterbury Button Co., 24 id., 468. The right and the power however to confer it in this way is no longer open to question. I know of no instance where the power in question has been exercised in this state unless it has been thus specially conferred *Page 570 by statute or rule of practice; and I feel warranted therefore in assuming that unless it is so conferred it does not exist.
In the present case the power of the court to dismiss the complaint is claimed under rule V. of the General Rules of Practice adopted in 1890, and found in the 58th volume of our reports, and under § 999 of the Revision of 1888. Unless thus conferred the power, I think, does not exist. Let us examine these two sources. The rule reads as follows: — "If a party fails to comply with an order or rule, he will be nonsuited or defaulted, and upon motion to set aside such nonsuit or default the court may grant the motion upon compliance with such terms as the court may impose." Under this rule the question is whether the ruling or order to elect in the present case was "an order or rule" within the meaning of Rule V. The words "order or rule," standing alone as in Rule V, are ambiguous; they may mean a general rule or order of practice or procedure, or some particular order or ruling made between parties in a given cause. To ascertain which of these meanings is the one intended we must apply the ordinary rules of interpretation. These words are practically synonyms, and are freely used as such in the dictionaries and in common speech. They are so used in law also. Black on Judgments, vol. 1, pp. 5, 6. I think they are used synonymously in Rule V, and must mean either a general rule made by the judges pursuant to law, or a special incidental order or ruling, made by the court in the trial of a cause. If the latter, then every "ruling" made in a cause is a "rule or order" within the meaning of Rule V; for the dictionaries define a "ruling" as a "decision or rule" of a judge or court.
If this be the correct interpretation of Rule V, then a party may be nonsuited for noncompliance with, or disobedience of, any such ruling, and thus may be put out of court against his will for a great many causes besides those specifically provided for by statute or general rule. This certainly works a very great and radical change in our practice in this respect; for, prior to 1890 as we have seen, this power was *Page 571 always conferred specifically in given cases under clearly defined circumstances, that usually left no room for doubt or dispute; and whether given by statute or by general rule, it was given quite sparingly and only in cases where it was deemed advisable to confer it. But under the claim now made, it is given generally and without apparent limitation, and of course may he used in cases where there may be great doubt as to whether the ruling is or is not erroneous.
I cannot believe that in adopting Rule V the judges intended to depart so widely and so radically from the former practice. It may well be doubted whether they had the power to provide by general rule sanctions of this kind for every special ruling or order made in a cause. They are expressly empowered to make general rules, and this by necessary implication gives the power to provide sanctions for these rules; but the power to provide sanctions for every special ruling is a very different matter, and is not given I think either expressly or by implication. But if we assume that they had the power, I think they have not exercised it. Had they intended to depart so widely from the former practice as is now claimed, they would have expressed themselves to that effect more clearly than they have in Rule V. There existed in 1890 no good reason why they should confer the power to nonsuit or default in this general way; for the Superior Court as a court of general jurisdiction already possessed ample power to enforce its special orders and rulings by methods quite as efficient as those pointed out in Rule V. Besides this it already possessed the power to nonsuit or default in all special cases where the legislature or the judges had deemed it advisable to confer it. Under these circumstances, I do not think the judges intended to confer it in all cases without limitation, and thus render superfluous the statutes by which it was specially conferred; especially when there existed no good reasons for so doing. For these reasons I think the rule invoked does not confer the power in question.
The power to dismiss is also based upon § 999 of the General Statutes. The difficulty here is that even under *Page 572 the most liberal construction of the statute the order in question does not fairly fall within it.
The object of the statute is to compel the parties to "make their pleas and join issue." If the plaintiff fails to do this according to the order of the court he shall be nonsuited; if the defendant so fails judgment may be rendered against him as upon nihil dicit. The end of the statute is attained when the parties have "made their pleas and joined issue." The court cannot use the power thus conferred for any other purpose. In the case at bar the pleadings were closed; the defendant under § 13 of Rule IV of the Practice Book had waived any exception for misjoinder; and the trial was in progress. Under these circumstances the plaintiff having offered evidence of a breach of contract, then offered evidence to prove a tort; thereupon the defendant claimed that the plaintiff could not proceed for both causes of action and that it bad already elected to proceed for breach of contract. The court held that the plaintiff had not made its election but ordered it to do so. This was not an "order of the court in pleading" within the statute.
If in a criminal case like that of State v.Bates, 10 Conn., 372, the court orders the prosecutor to confine himself to the act concerning which evidence has first been given; or if the prosecutor charging two distinct and separate felonies in one information, is ordered to elect, these can hardly with propriety be called orders of the court relating to the pleadings in such cases. Or if under § 1032 of the General Statutes the court orders one or more of the issues joined to be tried before the other, such order can hardly be called an "order of the court in pleading" within § 999.
The truth is the court made no "order in pleading." The pleadings were not to be changed at all, but were to remain precisely as the parties had made them. The power to dismiss a cause in this way ought not to be exercised except in cases where it is clearly conferred; and even in such cases it ought to be exercised sparingly, for such a power is "not the daily bread but the strong medicine" of the law.
For these reasons I think the judgment of the court below was either erroneous or void. *Page 573