193 Iowa 417 | Iowa | 1922
— We are confronted at the threshold with a question of practice. The appellees challenge the right of the appellant to take or maintain this appeal, because he did not at any time in the court below elect to stand upon his demurrer. We denied the motion of appellees for a summary dismissal. Our ruling in that regard was tentative only, and for the purpose of giving further consideration to the question on full submission, and of submitting a written opinion thereon.
The record discloses no evidence that the plaintiff elected to stand upon his demurrer. He saved an exception to the ruling, and took his appeal. The contention for appellees is that, in order to be entitled to appeal, the plaintiff was bound to indicate his election to stand upon the demurrer. Appellees concede, in effect, that, if final judgment had been, in fact, rendered against the plaintiff for want of pleading or amendment, following the ruling on demurrer, this would be sufficient evidence of an election to stand. No final judgment, however, was entered] The case is still pending upon the pleadings, with the right of amendment still open to the plaintiff, so far as appears from the record here. '
We deem it well settled, under repeated holdings of this court, that it is essential to the plaintiff’s right of appeal that he should unequivocally elect to stand upon his demurrer. This holding was first made in Wilcox v. McCune, 21 Iowa 294, and such holding has been repeatedly followed ever since. In the Wilcox case, it was said:
“To allow a party in such case to simply except on the record, and then require the adverse party to prove the averments of his pleading, would be giving to the demurring party an advantage of the denial or avoidance made by the statute, without any possible peril to himself — an advantage he does not have when the pleading is made in fact by the party. To entitle a party to the benefit of an exception to the action of the court in sustaining or overruling a demurrer, he must stand by h,is pleading or demurrer. And this is just as true in the in*419 stances where the law makes the subsequent pleading as where, by law, the party must make it himself. If he makes it himself, or allows the law to make it, he thereby waives the right to insist upon his exception to the ruling of the court in that particular. Take this ease as an illustration of the rule as stated. The plaintiff demurred to one count of the answer; the demurrer was overruled, and plaintiff excepted. The law put in the denial, and compelled the defendant to prove the averments of that count to the jury, who found thereon for the defendant. Now, the plaintiff, after he has had the benefit of a jury trial, seeks to go back, and take the benefit also of his demurrer. He cannot have both at once; he may have one, and he may choose which; but if he chooses to stand by his demurrer, he must take the consequences thereof, one of which is an admission of the truth of every well pleaded fact, — and this admission, of course, obviates the necessity of proving them, and, if sufficient, entitles the party to a judgment thereon. If they are not sufficient, and judgment is, nevertheless, rendered thereon, it will be reversed upon appeal, on the error excepted to, overruling the demurrer. By taking the benefit of a jury trial in this case upon the third count, the plaintiff has waived his exception to the overruling of his demurrer. ’ ’
In Cowen v. Boone, 48 Iowa 350, no final judgment had been entered in the case in the court below, but the appellant had made of record his election to' stand upon the demurrer. It was held that the election was sufficient for the purpose of an appeal, and that the entry of final judgment was not essential. In Hampton v. Jones, 58 Iowa 317, there was no formal election by the appellant to stand upon his pleading. But there was a final judgment against him for want of pleading or amendment. This was held to be sufficient evidence of an election to stand. In Seippel v. Blake, 80 Iowa 142, the plaintiff demurred to a division of the answer. His demurrer was overruled, and he excepted to the ruling and appealed therefrom. No election to stand upon the demurrer was disclosed, nor was any final judgment entered against him. . The record in that respect is. precisely what it is in the case at bar. In that case, the court said:
“It will be observed, from the statement of the case made*420 in our prior opinion, that a demurrer to defendants’ answer was overruled, and that plaintiff, without any action by himself or by the court, shown by the record, by which he rested upon his demurrer, and by which he would be precluded from trying the issues raised by the answer demurred to, appealed from the decision. It will be readily understood that, in the absence of such action, plaintiff could have gone on and tried the issues raised by the answer demurred to, and that, if the appeal be entertained, he could at the same time try in this court the question of law raised by the demurrer. The decision on the demurrer did not finally dispose of the defense raised by the answer. The plaintiff is in the position of asking a trial of the issues of fact upon the answer and the issues of law upon the demurrer. This cannot be admitted. Under Wilcox v. McCune, 21 Iowa 294, cited in our first opinion, he must abandon his claim to try the issue of fact on the answer before he can appeal, and thereon claim a determination of the issue of law presented by the demurrer. ’ ’
In Goldsmith v. Wilson, 82 Iowa 720, a similar record is presented, and the appeal was dismissed, under the authority of the Seippel case, supra. In Thorpe Bros. & Co. v. Smith, 86 Iowa 410, the Seippel case was again followed, and the appeal dismissed. In that case, the court said:
“The appellee has filed a motion to dismiss the appeal, on the ground that no judgment has been rendered, and the appellants failed to elect to stand on their petition. The motion is resisted on the ground that an appeal lies from an order sustaining or overruling a demurrer, and on the further ground that the ruling on the demurrer disposed of the case. Whether it did or not depended upon the volition of the plaintiffs. They had the right to amend their petition when the appeal was taken, and, so far as the record shows, may since have done so. ’ ’
In Roddy v. Gazette Co.,.163 Iowa 416, the foregoing cases are largely reviewed and followed. They were again reviewed and followed in Greeson v. Greeson, 185 Iowa 1096.
The argument for appellant is predicated largely upon the terminology of Code Section 4101. That section provides, in terms, that an appeal may be taken to the Supreme Court from an “order which * * * sustains or overrules a demurrer.” It is argued that this provision is definite and unqualified. If
In a word, in the Western Securities case the essentials to the right of appeal were declared to be: (1) Exception to the ' ruling; (2) election to stand upon the pleading.
It is strongly urged by appellant that our previous decisions on this question are not in harmony. We have examined all the cases cited by appellant in support of such contention, and find none that do support it. From the rule laid down in the Wilcox case, supra, we find no deviation in principle in any of -our later cases. The only apparent qualification of the rule is in the holding that, even though no formal election to stand upon the demurrer be made, yet, if it appears that the appellant suffered final judgment to be entered in. the lower court for want of amendment or pleading, this will be deemed sufficient evidence of an election to stand. In the case at bar, there was neither a formal declaration of election to stand nor a'final judgment dis
It follows that the appeal must be — Dismissed.