162 Iowa 204 | Iowa | 1913
Suit was brought in the district court of Johnson county by the appellant, the Peter Schoenhofen Brewing Company, against Chas. Giifey and Hannah M. Giifey, based upon three promissory notes executed by the defendants. The action was in three counts, respectively, on the several notes, their aggregate being about $580. For their answer the Giffeys admitted that they signed the notes in suit but denied any indebtedness thereunder for the reason, as pleaded by them, that the notes were given to the plaintiff for intoxicating liquors sold to the defendants by plaintiff, the appellant, and that at the time of such sales the appellees, who claim to be the only shareholders, constituted a duly organized corporation known as the Giifey Bottling Company, which was then unlawfully conducting a saloon at Lone Tree,
By way of counterclaim the Giffeys ásk judgment against the brewing company, appellant, in the sum of $1,-592.13 for payments alleged to have been made by them to it at different times for intoxicating liquors purchased to be sold in violation of law, of which fact it is charged the brewing company had full knowledge. In reply the appellant denied that the Giffeys were conducting a saloon in violation of law, as claimed by them, and that, if they had any intent to violate the law in the course of.reselling the liquors so bought, the same was unknown to it. Further in reply the brewing company pleaded that the defendants Chas, and Hannah M. Giffey had not the right to interpose the defenses pleaded to the promissory notes sued upon.
Thereafter there was presented to the district court an application of the Giffey Bottling Company to be made a party defendant, claiming that it had an interest adverse to the plaintiff in the controversy. The application, in addition to reaffirming the statements of the Giffeys as to the transaction, which was the basis of the notes in suit, also pleaded that “the said Chas. Giffey and Hannah M. Giffey, by signing said notes and delivering them to the plaintiff, became sureties for the said Giffey Bottling Company upon said indebtedness.” Because of such relation and liability, the Giffey Bottling Company claims an interest adverse to the plaintiff, appellant, and is interested in having the notes declared void and the indebtedness canceled.
The lower court permitted the Giffey Bottling Company
' Thereafter the Giffey Bottling Company filed an amended and substituted counterclaim, covering in more detail the averments in its application and of the Giffeys in their answers. Against this pleading the appellant filed its motion to strike it in part and as a whole, stating as grounds those previously stated in the motion to set aside the order permitting a new defendant to come in. Both of these motions were overruled, and exceptions to the rulings were duly taken. From the rulings on the several motions this appeal is brought.
From a consideration of the issue raised or right pleaded in the answer and counter-claim of the Giffey Bottling Company, it is obvious that the ruling of the trial court in permitting the pleading to stand was not such as in effect determined the action and prevented a judgment from which an appeal might be taken. In the trial under the issues thus presented, and for the purpose of this hearing we treat the pleadings as being sufficient to present an issue of law and fact, the trial court, did the facts so warrant, might have rendered judgment for the plaintiff on its claim and against the counter-claim, or for the defendant, or the Giffey Bottling Company on their counterclaim, and against the plaintiff on its claim. It needs no extended discussion to bring the mind to the conclusion that had the trial court under the plea of the Giffey Bottling Company held that the notes in suit were merely surety obligations, and that the bottling company had the right to set off against them its claim for money paid to the appellant for liquors intended to be unlawfully sold, from a judgment based upon such conclusion the right of appeal would be absolute in the plaintiff; and the appeal would necessarily bring up for consideration the legal sufficiency of the claim and of the defense of the Giffey Bottling Company, and also the question of its right to be heard. This general statement of the rule has support in the following cases: Eggert & Lockwood v. Interstate Co., 146 Iowa, 484; Jenks v. Smith, 129 Iowa, 139; Roberts v. Malloy, 100 Iowa, 372. The case does not afford the right of appeal, as provided in the first subdivision of Code, Section 4101.
II. The provisions of the fourth subdivision of the quoted section allows an appeal from an intermediate order involving merits or materially affecting the final decision. A construction of this provision, as applied to the record in this case, requires to be determined the meaning which must be given
We are satisfied that every right of plaintiff, the appellant, can be fully protected by the final judgment, when it shall be entered in this case, and that by appeal from it, should it be adverse to it, this appellant is entitled to have reviewed every ruling of the trial court to which exceptions shall be taken, included in which would be the questions involved in the present appeal.