THOMPSON v. GATLIN et al., 58 F. 534

CALDWELL, Circuit Judge, after stating the facts as above, delivered the opinion of the court. The Code of Practice in force in the Indian Territory provides that “where the complaint contains more than one cause of action, it shall he distinctly stated in a separate paragraph and numbered.” Mansf. Dig. Ark. § 5027. The plaintiff has chosen to divide his damages into four classes or heads, and to state the specific sum claimed under each head:-

(1) For the destruction of improvements and crops upon the land, the damages are alleged to be $2,089.25, but for some reason, not stated in the "complaint, a recovery of these damages “is not asked for in this suit.”

(2) For being deprived of the possession of the land from July, 1891, to April, 1892, the complaint claims “actual damages in the sum of four hundred and fifty dollars.”

(3) For depriving the plaintiff •of his right to maintain his residence in the house upon the land the complaint claims “actual damages in the sum of ten thousand dollars.”

(4) And for maliciously ánd oppressively depriving the plaintiff of the possession of the premises and destroying the improvements on the same, §10,000 are claimed as exemplary damages. The statute under which this action was instituted requires the plaintiff to execute a bond to the sheriff conditioned that he “will restore the possession of the lands, tenements, or other possessions in the complaint mentioned if restitution thereof be adjudged, and will pay the defendant all such sums of moneys as may he recovered against him by such defendant in the action for any cause whatever.” Mansf. Dig. § 3353.

Unless the action be malicious and without probable cause, the remedy of a party claiming to have been wrongfully dispossessed in an action of forcible entry and detainer is confined to his right to costs, and an action upon the bond required by the statute, and in such an action the plaintiff must allege the termination of the original suit in his favor. Burton v. Railway Co., 33 Minn. 189, 22 N. W. Rep. 300; Preston v. Cooper, 1 Dill. 589; Stewart v. Sonneborn, 98 U. S. 187; Closson v. Staples, 42 Vt. 209.

The $450 damages claimed under the second head are of identically the same character as those first set out, but not sued for; and both of these items of damages are such as could be recovered in an action on the bond. The $2,089.25 and the $450 items' of the damages cannot be split into two suits, and a recovery had in each. A verdict and judgment in one suit would be a bar to the other. The claim of $450 damages for the loss of the use and occupation oí the land must, therefore, be regarded as representing the plaintiff’s claim to damages on the bond, though imperfectly and insufficiently stated.

The damages claimed for malicious prosecution constitute a different cause of action, and should have been separately paragraphed. This cause of action was also imperfectly stated, in that the complaint did not aver want of probable cause, and the termination of the suit in plaintiff’s favor. A recovery could be had for the damages specified under the first and second heads upon averments in the complaint and evidence that would not authorize a recovery for the other damages claimed. Preston v. Cooper, supra; Stewart v. Sonneborn, supra.

The question whether these separate causes of action could be joined in one suit is not before us. The plaintiff cannot avoid paragraphing his complaint by imperfectly stating the different causes of action. The order of the court requiring the plaintiff to paragraph it was a reasonable one, and the plaintiff having defied the authority of the court in the premises the action was properly dismissed. Eisenhouer v. Stein, 37 Kan. 281, 15 Pac. Rep. 167. We may add that if the court erred in the matter it was not prejudicial error, for the complaint stated no cause of action of any kind. See cases above cited.

The judgment of the court below is affirmed.