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Grubbs v. Slater & Gilroy Inc.

March 19, 1954

GRUBBS
v.
SLATER & GILROY, INC.



Combs

The appeal is from a judgment dismissing without prejudice appellant's, Millard Dee Grubbs', petition for failure to paragraph.

It is first insisted by appellee that since the judgment is without prejudice to the filing of another suit, it is not an appealable order. But we think it is. C. I. T. Corporation v. Teague, 293 Ky. 521, 169 S.W.2d 593; Wood v. Downing's Adm'r, 110 Ky. 656, 62 S.W. 487.

The record consists of the petition and four amended petitions, with a bewildering array of notices, motions, orders and exhibits. The petition charges a violation by the appellee of a written contract under which it was to print a book written by appellant, entitled "The 4 Keys to Kentucky.' Before he was through, appellant had pleaded four or five causes of action, some legal, some equitable, and some which could be described as mixed. The petition was filed on March 31, 1951. On the following June 13, appellant was ordered to paragraph his petition. The order was ignored. On November 27, after the third amended petition had been filed, appellant was ordered to reform his pleadings. He thereupon filed a fourth amended petition which he later was permitted by order to designate "amended and substituted petition.' This pleading also was subject to the vice of multifariousness and was not paragraphed as required by Carroll's Civil Code of Practice, § 113, subsection 3. The petition was finally dismissed on April 21, 1952.

Appellant having failed to comply with the order to paragraph his petition, it was properly dismissed without prejudice. Carroll's Civil Code of Practice, sections 114 and 371.

Only a partial transcript of the record was filed here by appellant and a complete transcript has been filed by appellee. Appellant has made a motion to strike the transcript filed by appellee. Since the complete record was necessary for proper consideration of the appeal, appellant's motion to strike the record filed by appellee is overruled.

The extraneous matter in the briefs has not been considered. Appellant's motion to strike this material is sustained.

The judgment is affirmed.

19540319

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