123 Iowa 336 | Iowa | 1904
The plaintiffs amended and substituted 'petition states, in substance, that on November 4, 1895, the - defendant, a national. bank, having its principal place of . business in Des Moines, Iowa, acting by its board of direc- . tors, ordered a tax dividend to be made upon its capital stock; ■ the distribution thereof to be made or affected by payment of : the taxes levied upon the shares of stock held or owned by the- ' individual shareholders in said banking corporation. It is further alleged that in pursuance of said order the bank did pay the taxes levied upon the shares of many of the shareholders, including the directors, but failed and refused to-pay the taxes levied upon certain other shares belonging to other shareholders, thus unjustly discriminating between the owners of the stock, and that the claims of the several shareholders against whom such discrimination was made have been assigned to plaintiff. lie therefore asks judgment against the bank for an amount equal to the taxes which the latter neglected to pay. Hpon the filing of said amended and substituted petition, defendant moved to strike the same from the files, and for judgment against plaintiff for costs, assigning as grounds therefor (1) that, after a demurrer to the original petition had been sustained, and plaintiff had amended his pleading, the trial court sustained plaintiff’s motion to strike the amendment, and for judgment for costs against the plaintiff, but that said ruling had, by oversight, never been made of record, and that “plaintiff himself labored under the impression” that a proper entry of the ruling had been made, and did nothing further in the case for several months, when he filed the amended and substituted petition; and (2) that the amended and substituted petition simply repleads the same matter alleged in the petition to wliich
It follows from the foregoing considerations that the district court erred in sustaining the motion to strike and to dismiss, and the cause must he remanded for further proceedings not inconsistent, with this opinion. The judgment appealed from is reversed.