127 Iowa 376 | Iowa | 1904
Tbe only discordant note, if there be any, is Zalesky v Ins. Co., 102 Iowa, 613. But in tbat case tbe plaintiff bad no cause of action for more tban nominal damages until ascertained by an appraisement, and it was beld tbat as be bad, by reason of a contract between tbe parties stipulated tbat no suit should be brought until an appraisement was made, and then only for tbe amount of tbe appraisement, be could not, by supplemental petition, show tbat after tbe bringing of tbe original action be bad made a demand for an appraisement. Tbe ease was decided wholly on tbe contract limitations made by tbe parties, and tbe statutes relied upon by plaintiff herein, as well as by plaintiff in tbat case, with reference to tbe filing of amended or supplemental petitions, were beld not applicable. Moreover, tbe plaintiff in tbat case did not file a supplemental petition, as we understand it. He asked for a continuance of tbe case, tbat be might make demand for an appraisement; and tbe trial court — erroneously, as we beld — granted bis request. ' This for tbe plain reason tbat a plaintiff cannot ask a delay of bis suit tbat be may either perfect or create a substantial cause of action. What was said in tbe case must be construed with reference to tbe facts involved. True, after tbe continuance was granted in tbat case, a supplemental petition was filed; but it was tbe order granting tbe continuance in tbe case for tbe purpose of maturing or creating tbe cause of action which was tbe controlling feature. By tbe terms of tbe policy there involved tbe loss was not payable until after an appraisement was demanded. Further, it appeared tbat an appraisement bad been demanded by tbe insurance company; but tbe plaintiff, instead of respecting tbe demand, paid no attention thereto, but immediately brought suit, in plain violation of tbe terms of tbe policy. To allow him to proceed in this man
We have no occasion to consider the statute of limitations contained in section 3447 of the Code, as the motion was not sustained on the theory -that the action was barred, nor was any such claim made in the motion itself.
Por the reasons pointed out, the judgment must be and it is reversed.