122 Iowa 602 | Iowa | 1904
The petition as originally filed was in one count. The defendants moved the court that plaintiff be required to separate its petition into counts, and, this motion having been sustained, the plaintiff thereafter filed an amended and substituted petition in three counts. In the first count it is alleged, in substance, that plaintiff is the school township of Franklin, in Greene county, and known, prior to the adoption of the present Code, as the district township of Franklin; that as such it lias all the powers incident to a school township. It is then said that the defendants, Wiggins and six others, naming them, under claim that, a part of the territory of said township, viz., sec
The court, on motion of defendants, struck out of said petition all that portion of count 1 which we have italicized as above, and the whole of count 3. The grounds of the motion, as addressed to the first count, were that the portion thereof which relates to the levy and collection of taxes, etc., states a separate and distinct cause of action improperly joined herein, and that the same is pleaded in violation of the order to separate into counts. The other portions of said count so stricken out were assailed as being irrelevant, redundant, and immaterial, and statements of legal conclusions and not facts. Count 3 was assailed as a cause of action improperly joined, for that the cause of action set forth in the first count is in the nature of an action in quo warranto.
Following the ruling upon such motion to strike, the defendants moved the court to transfer the cause to the law' docket, there to be tried by ordinary proceedings, and this for the reason that the petition stated a cause of action in quo warrmño, and was therefore improperly brought in equity, and that “plaintiff is in error as to the kind of proceedings adopted, and said cause is erroneously brought.” This motion was sustained. Thereupon the defendants an
To the answer thus filed the plaintiff demurred; to the second division, for that the facts pleaded do not constitute a defense arid are immaterial and incompetent as the issue now stands, this being an action to determine only the legality of the organization of the alleged independent district; to the third division, for the reason that the matters stated do not constitute a defense, plaintiff being a legally organized school township; to the fourth division, for that the same is not a defense, this action being prosecuted against certain persons only, who it is claimed are pretending to act as officers, but without right; to the fifth division, for that the same is not a defense, this action not being in quo ivarranto.■ The demurrer was overruled as a whole. To all the rulings referred to plaintiff saved exceptions, and' now assigns errors based thereon.
It is evident that the ruling upon the motioii as addressed to the third count of the petition, the ru1i~g npo~ the motion to transfer the cause to the haw docket, and the ruling upon
We have, then, as the question remaining t'o be considered, whether the petition in this action presented matters of private right and interest properly cognizable in a court of
The judgment is reversed, and the cause remanded for further proceedings according to law.- — Reveesed.