67 Iowa 488 | Iowa | 1885
The original petition was an action at law against the defendant T. J. Harwich, and demanded judgment against him upon a promissory note. The action was aided by attachment, and certain personal property was levied upon. Afterwards the plaintiffs filed1 an amendment to tbeir petition, in which they made May Harwich, T. P. Harwich and the Farmers’ Loan & Trust Company new parties to the action. In this amendment the plaintiffs, in addition to a judgment against T. J. Harwich, as claimed in the original
It is to be observed that the amendment to the petition was not substituted for the original petition. It purports to be an amendment making new parties and additional statements. It is very plain, therefore, that the petition as amended contained two causes of action; one an action at law against T. J. Harwick upon a promissory note, and the other a petition in equity against May Harwick and the other defendants, the object of which was to establish and enforce a mechanic’s lien. It is expressly provided by statute that the action upon a mechanic’s lien shall be by equitable proceedings, and no other cause of action shall be joined therewith. Code, § 2510. It is unnecessary to determine whether the plaintiffs could in one action enforce the mechanic’s lien and also take a judgment against one of the parties for the amount that the promissory note exceeds the lien. The fact remains that the petition as amended contained two distinct causes of action. The plaintiffs should have elected on which cause of action they would proceed, or, after the motion to strike the amendment was sustained, they should have filed separate petitions, as provided by section 2634 of the Code.
The ruling of the court in refusing to entertain the action as to the new parties defendant was correct. It is true, they did not join in the motion to strike the amended petition. But when it was stricken from the files, it could neither be transferred to the equity calendar, nor made the basis of any other action by the court.
Affirmed.