16 Iowa 471 | Iowa | 1864
That the court below erred in sustaining this demurrer, “for the reason that plaintiff’s remedy was in equity, and not at law,” we entertain no doubt. Without quoting, we refer to the Revision of 1860, §§ 2608, 2613,2614-2616,2619, and the following cases: Trustees, &c., v. Forrest, 15 B. Monr., 172; Foster v. Watson, 16 Id., 387; Lansdale v. Mitchell, 14 Id., 349; and see, also, Revision of 1860, § 2876, as to causes of demurrer.. Under our system of practice, the different forms of action are abolished. The only form now known is called a “civil action;” and the proceedings thereunder are “ ordinary ” and “ equitable.” That a party institutes' an “ ordinary ” proceeding when it should have been “equitable,” or vice versa, affords no ground for abating or dismissing the action; nor can such an error be reached by demurrer. The appropriate remedy is by motion to have the action changed into the proper proceedings, such motion even being unnecessary when plaintiff seeks the change before the defendant has answered.
But though the judge below may have based his ruling ■upon an untenable ground, it should not be reversed, if, for any of the causes assigned in the demurrer, the plaintiff failed to show facts sufficient to give him a cause of action. And the important inquiry is, whether plaintiff shows such a right or interest ,in that which constitutes the the cause of action as entitles him to sue at law in his own name.
The several cases referred to by appellées, from Andrews v. Brown, 1 Iowa, 154, to McDowell v. Bartlett, 14 Id., 157 (and there are many of them), to sustain the points made by their demurrer, were made under the Code of 1851. If the same rule obtains under our present system of practice, it would still be questionable whether this demurrer should not have been overruled. For this case differs from any to which our attention has been called, in the fact that
What are the plaintiff’s rights, however, upon the assumption that he is invoking the aid of a legal tribunal?
The- petition avers that Nutter did verbally sell to McMaster (who, in writing, assigned the same to plaintiff) the judgment and all moneys owing thereon, and all his right and interest in and to the bond, and in order to carry out said sale, delivered an order, &c. The Code of 1851, like the Revision, provided that civil actions should be prosecuted in the name of the real party in interest. In a law forum this was uniformly understood to mean a legal interest. This construction followed almost as a necessary consequence, from the proposition, that the Code abrogated none of the rules of the common law, as to law and equity practice, and the more fundamental idea that under the Constitution it was deemed by the Legislature necessary to keep the two jurisdictions separate and distinct.
• The construction above adverted to was, however, certainly much innovated upon, if not entirely overthrown in the subsequent case of Shepard v. Ford, 10 Iowa, 502, decided by two members of the court as then constituted. Following this, we have the Revision, which gives to us a system involving more radical changes and broader and more uniform rules of practice. This, as we have seen, abolishes “all forms of actions,” and yet the two jurisdictions, as separate and distinct tribunals, ,are not abolished. The different methods of trying law and equitable actions, as recognized before its adoption with such modifications as in no wise conflict with the Constitution, are still kept up. If a right is sought to be enforced or protected, or a wrong redressed or prevented, but one “ form ” is given, and that is styled a “ civil action.” If the cause of action is cognizable at law, the party having the real interest therein is to be heard in that form, if equitable, in equity. His proceeding, in other words, is to be “ ordinary” or “ equitable,” according to the nature of his cause of action. And hence, the question is determined, not so much by the evidence showing the interest, as by the fact that he is the real party in interest, and has for his cause of action a subject matter of which the law will take cognizance. In other words,
Holding thus, it necessarily results that the Court below erred in ruling that plaintiff’s remedy was in equity and not at law.
Reversed.