Jamison v. Burlington & Western Railway Co.

78 Iowa 562 | Iowa | 1889

Rothrock, J.

The original proceeding for the •condemnation of the land was affirmed by this court. The cause was remanded by procedendo. The plaintiff wás desirous of recovering the interest on the deposit made with the sheriff pending the appeal. It was sought to accomplish this by two proceedings: First, by a motion to redocket the original case, and. a pleading demanding the interest; and, second, by this independent action. It is very plain that the plaintiff had no right to maintain both actions at the same time. They sought precisely the same relief. It is equally' plain that, in the proceedings to condemn the land, all of the rights of the parties should be adjusted. There was no reason for bringing an independent action. The plaintiif sought to avoid the dismissal of this action by moving to consolidate it with the condemnation proceedings. The court rightly refused to sustain the motion to consolidate. Plaintiff’s counsel claim the motion should have been sustained on the ground that, under section 2514 of the Code, ‘ ‘ an error of the plaintiif as to the kind of proceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceeding, and a transfer of the action to the proper docket.” This provision of the law has no application to double actions for the same thing. A party has no right to harass another by more than one action at the same time for the same cause, and cannot maintain more than one action by consolidation. The order of dismissal will be

Affirmed.