148 Iowa 223 | Iowa | 1910
The facts out of which this controversy arises are not in dispute, being settled by stipulation of the parties appearing in the record. So far as we deem them material to a disposition of the case, they are as follows: In 1890, William Back, the decedent, married a widow, one Mrs. Dirke, who then had living a daughter by her former husband. The daughter is the plaintiff in this case, In 1900, the wife obtained a divorce from said William
The contention of appellee now is that appellant by filing the reply after her demurrer to the answer had been sustained waived any error in such ruling, and can not now rely upon such alleged error as a ground for reversal. The rule which was well established by earlier decisions of this court, to the effect that, by amending or pleading over after a ruling on a demurrer, the unsuccessful party waived any error in such ruling, had the manifest result of depriving him of an opportunity to insist upon an error of law committed in a ruling on a demurrer if he by amendment stating additional facts relied upon as constituting' a cause of action, or by pleading additional matters of defense or reply, sought to raise other issues than those arising on the pleadings as they stood at the time the ruling against him on demurrer was made. For instance, the defendant could not question the legal sufficiency of the allegations of plaintiff’s petition, and also question their truth. If he demurred to their sufficiency, and his demurrer was overruled, and standing on his demurrer judgment was entered against him, he could not afterward, when by appeal it had been determined that the ruling on demurrer was correct, get back into court 'for the purpose of contesting the truth of the allegations; while, on the other hand, if he relied subsequently on a denial of the truth of the allegations and went to issue on the facts, he could not on appeal question the correctness of the ruling on the demurrer, for any error in such ruling would have been waived by pleading over. By amendatory legislation incorporated now into Code,
We shall not stop now to discuss the question whether a marriage between parties within the prohibited degrees of consanguinity or affinity is void or voidable ‘only, but proceed at once to determine whether the marriage of plaintiff to decedent was within any of the prohibitions of Code, section 4936, and the determination of this question depends upon the construction of the words “wife’s daughter” in that section. As the statute is penal, it should not be applied to any case which does not fall both within its letter and its spirit; and this rule of construction must evidently be followed for the purpose of determining the validity of a marriage, which it is contended is invalid
We reach the conclusion, therefore, that the relationship of affinity between the decedent and plaintiff which existed during the continuance of the marriage relation between decedent and plaintiff’s mother terminated when the latter procured a divorce from decedent, and after that time plaintiff was not the daughter of decedent’s wife, and the marriage between them was valid.
This conclusion renders it unnecessary to determine the sufficiency of the allegations of matters in estoppel found in plaintiff’s reply which were held to be insufficient by the lower court on demurrer.
The judgment of the trial court is reversed.