2 Reported in 171 N.W. 767, 173 N.W. 401.
On plaintiff's motion the court made an order requiring defendant to make its answer more definite and certain by setting out in words or substance the by-laws under which it asserted a lien on the capital stock in controversy. Defendant appealed from this order, and plaintiff moves to dismiss the appeal on the ground that the order is not appealable.
An order refusing to require a pleading to be made more definite and certain is not appealable. American Book Co. v. Kingdom Pub. Co. 71 Minn. 363, 73 N.W. 1089; State v. O'Brien,83 Minn. 6, 85 N.W. 1135. An order requiring a pleading to be made more definite and certain, and providing that the pleading shall be stricken out unless made more definite and certain, is appealable. Lovering v. Webb Pub. Co., 108 Minn. 201,120 N.W. 688, 121 N.W. 911. This latter case distinguished the order there considered from the orders considered in the prior cases on the ground that it was in effect an order striking out the pleading and therefore involved the merits of the action. The order in the instant case makes no provision for the situation which would exist in the event of a failure to obey it. But a failure to comply with the order would be a sufficient ground for the court to strike the indefinite allegations from the answer, or bar defendant from introducing evidence in support of them. 31 Cyc. 651; Lipman v. Bechhoefer, 141 Minn. 131, 169 N.W. 536. This order may produce the same result as the order in the case cited, and we are of opinion that it is within the doctrine of that case and appealable as an order involving the merits. The motion to dismiss the appeal is denied.
On July 18, 1919, the following opinion was filed:
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