Case v. Blood, 71 Iowa 632

Case v. Blood

71 Iowa 632 | Iowa | 1887

Beck, J.

1. Statute of Limitations: amendment: same cause of action: different relief. I. The cause has been before in this court. See 68 Iowa, 486, for facts and pleadings upon which the cass was decked- Upon the remanding of the cause, plaintiff filed an amended petition presenting substantially the same facts as alleged in ^he orjginai petition. The relief asked in this amendment is that defendants be required to appoint arbitrators to make an equitable division of the assets of the district township.

II. Defendants now insist that the action was barred by the statute of limitations, which is pleaded as a defense in the answer to the amended petition filed after the cause was remanded to the circuit court. This position is based upon the claim that the amended petition presents a new cause of action which accrued within the time limited by the statute. We think this'position is not supported by the facts. The cause of action, in both the original and amended petitions, is the failure of the defendants to equitably divide the assets of the district township. The relief asked is not identical in these separate pleadings. In the original petition, plaintiff asks that the respective boards of directors be required to *634meet and mate a division of the assets of the district township; and, in case they fail to agree, that the court appoint arbitrators to mate such division. The amended petition prays that the respective boards of directors appoint arbitrators to mate such division, and the court appoint a time and place for the meeting of the boards for the purpose of mating snch appointment. It will not be disputed that the remedy sought is not the cause of action, and is no part of it. The cause of action, if valid, entitles the plaintiff to a remedy. In a proper case, he may change his claim for the remedy, without in any manner presenting a new cause of action. This was done by plaintiff in this case. The action after the amendment was simply a continuance of the original action, with a claim for a different remedy. It is not claimed that the cause of action was barred when the suit was originally commenced.

2. Appeal: parties after reversal. III. The directors of the independent district did not join in the former appeal. It is now insisted that the case as to them is ended, and that they were not before the court after the cause was remanded from this court. If they were satisfied with the first judgment, they cannot be presumed to have abandoned the cause or to have withdrawn from it when it was reversed. Indeed, they must be presumed to be dissatisfied with the reversal of the judgment, as they were satisfied with the judgment. At all events, the reversal of the judgment left all the parties in the condition they were in before the judgment was rendered. These directors did in fact appear in the case, and were therefore before the court below, as they are in this court.

.. 3. SCHOOL CUJnooractr:e£us" remedy. IY. Defendants insist that plaintiff’s remedy was by appeal to the county superintendent. But such appeal is authorized from a decision or order of the direct- • tors- Code, § 1829. In this .case the directors did not decide anything, and made no order. They simply refused or neglected to act. No appeal could *635be taken from their default in this regard. Plaintiff’s proper remedy is mandamus.

4 School Districts: funds: interest of non-resident tax-payer. Y. It is urged that, as plaintiff has ceased to be a resident of the independent district, and a patron of its school, he cannot be aggrieved by the official non-feas- . anee ol the appellants. Rut he is still a tax-Payer °f the district, and as such he is injured, if fnrL¿s are withheld from it by the district township. Such funds would probably take the place of money raised by taxes. Plaintiff’s taxes, therefore, are liable to be increased by the non-action of the respective boards of directors.

5. Evidence: use of recordon former trial: foundation. VI. The circuit court, against defendant’s objection, permitted the evidence incorporated in the bill of exceptions taken upon the former trial to be read from the record, thus dispensing with the oral testimony of the witnesses and the original documents. 'This was done without any showing of the absence of the witnesses, or of plaintiff’s inability to produce the original documents, or any notice to defendants. This is clearly unauthorized by law. In Code, § 3777, it is provided that a transcript of the evidence preserved by the short-hand reporter may be admitted in evidence “with the same force and effect as depositions, and subject to the same objections, so far as applicable.” • But depositions containing the evidence of witnesses, or copies of documents, cannot be introduced in evidence without excuse for not producing the witness in court, or for not producing the original document. This point we have before ruled. Baldwin v. St. Louis, K. & N. R'y Co., 68 Iowa, 37.

Eor this error the judgment of the circuit court is reversed, and the cause is remanded for a new trial.

Reversed.