Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co. recovery ascertained by the proper rule, at the same hearing in which the right of recovery was established. The defendant refers to Turner v. Davis, 48 Conn., 397, 400, as affirming it to be a rule of pleading that a plaintiff can never" occupy at one and the same time, with reference to the same subject-matter, and for the accomplishment of the same object, two positions utterly inconsistent with each other." The question in that case was whether the mortgagee of a reversion who, after accepting an attornment from the tenant and giving him a lease, had sought and obtained a foreclosure and judgment of ejectment against the mortgagor, on a complaint alleging that he was in possession, could then change his position and maintain summary process against the tenant on the lease he had himself executed. This depended on the effect of a judgment by way of estoppel. The remarks quoted from the opinion of the court were pertinent to the case before it, where the plaintiff's rights had been fixed by a previous election. They have no application to the interpretation of the Practice Act in relation to the joinder of causes of action, between which no election has been previously made. It is the rule in some states that inconsistent claims cannot be set up in the same complaint, nor inconsistent defenses in the same answer; but a different policy has been adopted here. Practice Book, p. 11, Rule I, § 3; p. 13, Rule II, § 9; Forms 15, 16, 389. The plaintiff's complaint, therefore, was in proper form, and in our opinion it set up no claims that could not be properly and conveniently heard together. It follows that the trial court erred in requiring the plaintiff, during the progress of the trial, to elect between proceeding under its claim for breach of contract or under its claim for a tort. The order, however, while erroneous, was not void. The court had power to direct that one or the other of these claims should be expunged from the complaint, and to make the selection for this purpose itself. General Statutes, § 878. By the action taken the power and duty of selection, Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co. instead of being exercised by the court, were cast upon the plaintiff. The court had jurisdiction over the parties and the cause. It was its duty to see that the issues were so framed and tried as not to embarrass the jury by any confusion of questions which could only be satisfactorily disposed of when separately presented. The right to require an election, within proper limits, and at the proper time, between different causes of action combined in a single proceeding, is one generally incident to courts of justice. State v. Tuller, 34 Conn., 280, 299. The error of the trial court was therefore committed in the exercise of its legitimate jurisdiction, and it was incumbent upon the plaintiff to obey the order or abide the consequences. Full warning was given by the court that a refusal to elect would be deemed sufficient ground for a dismissal of the suit. The General Statutes, § 999, direct that "if the plaintiff shall refuse to obey the order of the court in pleading he shall be nonsuited," and the general rules of practice (58 Conn., 577, Rule V), expressly provide that "if a party fails to comply with an order or rule he will be nonsuited or defaulted." It is not for him to refuse obedience to such an order because he deems it erroneous or because it is erroneous. Until revoked or reversed it is the law of the case. He can take his exception, but such exception will not suspend the course of justice. The order will still remain in force, and must be obeyed or the suit dismissed, if the authority of the court, and the dignity of the state which it represents, are to be maintained. It is urged by the plaintiff that, had it made the election required, and then failed to recover a verdict, it could never have sued again on the cause of action which had not been submitted to the jury. But the order of the court was made simply to facilitate the disposition of the case on trial. Its effect was limited by its object. An election forced upon a plaintiff under such circumstances would be simply an election for the purpose of the trial, and his selection of one out of two causes of action arising out of the same transaction would no more have extinguished that not chosen than if it Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co. had arisen out of a totally different transaction. As to one cause of action only would the plaintiff have had his day in court. The other would stand as if wholly unheard; and as to both, if the order were erroneous and a proper exception taken before making the election, a new trial could be had on the original complaint. The only exception taken by the plaintiff at the trial of this action in the court below was to the order dismissing the complaint; but, as another suit may be hereafter brought, we have thought it better to express our views fully as to the question of pleading and practice which had previously arisen, and which would be not unlikely to recur in any subsequent proceedings between the parties. There is no error in the judgment appealed from. In this opinion ANDREWS, C. J., and FENN, J., concurred; CARPENTER and TORRANCE, Js., dissented. CARPENTER, J. (dissenting). We all agree that the court erred in requiring the plaintiff to elect whether to claim a judgment on a contract or in tort. The result is that, for disobeying an erroneous order, the plaintiff has been nonsuited. In correcting that error ought not the plaintiff to be restored to its former position in court? The answer is that the order, although erroneous, was the law of the case until reversed, and should have been obeyed. But is that strictly true? If the order was not within the jurisdiction of the court, how could it be the law of the case? And was the plaintiff bound to obey it? I suppose the plaintiff had a right to state the facts constituting his cause of action, and call upon the court to render the appropriate judgment. What power then had the court to order the plaintiff to decide in advance what the appropriate judgment was, and elect to claim that judgment only? Suppose the plaintiff has two separate causes of action stated in different counts; has the court the power to compel him to strike out one of the counts and to claim a judg Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co. ment only on the other? The case before us and the one supposed seem to me to depend upon the same principle. If my brother TORRANCE is right, and I am inclined to think he is, that there is no statute or rule of court authorizing a nonsuit in such a case, then unless it is within the general powers of the court, the punishment was unauthorized, and the judgment of nonsuit should have been reversed on that ground. TORRANCE, J. (dissenting). 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 the refore 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. Me Veigh, 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 In this state where such power exists it has, so far as one. Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co. 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 nousuit 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 primâ facie 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. See Hoyt v. Brooks, 10 Conn., 190, and Naugatuck 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 con |