Moon v. Hartsuck

137 Iowa 236 | Iowa | 1908

Weaver, J.

The ruling of the district court- was clearly right. First. In the first place, if there was another case pending involving the same issue, or if any valid judgment had been entered in another proceeding which was available to the defendant as a former adjudication, or if the plaintiff .had by some act or allegation, estopped or barred himself from prosecuting his appeal, such matter could be taken advantage of only by a plea in bar or in abatement, as the case might be. It ought not to require a citation of authorities in support of the proposition that such an issue is not to be tried upon affidavits or by an ex parte showing of the defendant’s information or belief.

Second. Even if it be taken for granted that the plaintiff herein and the plaintiffs in the certiorari proceeding were members of the same association, and were in each instance seeking to test the validity and sufficiency of the alleged statement of general consent, there is no principle of law or rule of practice in this state by which the right to prosecute the appeal is forfeited or lost by the prosecution of the certiorari proceeding. The doctrine of election between inconsistent remedies has not the slightest application under such circumstances. It may be true, indeed it is true, that certiorari will not lie under our practice if the party has an adequate remedy by appeal; and in that very fact is found an all-sufficient reason why no right of election could exist. A party is never put to an “ election ” except where two or more inconsistent remedies for the same wrong are. open to him, and he may rightfully pursue either. If there be but one available remedy, and he mistakenly pursues another which is not available, it does not operate as an election. Zimmerman v. Robinson, 128 Iowa, 72; Redhead v. Cattle Co., 126 Iowa, 410.

It may well be that the district court dismissed the certiorari proceeding for the simple reason that in its judgment the plaintiffs had a full and adequate remedy by appeal from the finding of the board of supervisors; and it would be a ludicrously strange doctrine to announce that, when a party has been denied remedy by certiorari because he has a right of appeal, he will then be denied his right of appeal because he vainly sought relief by certiorm'i. It is unnecessary to prolong this discussion. The authorities cited by appellant have no relevancy'to the questions raised by the appeal, and we shall not stop to review them.

There was no error in overruling the motion to dismiss, and the judgment of the district court is 'affirmed.