82 Iowa 632 | Iowa | 1891
The original petition in this case was filed in April, 1889, and shows facts substantially as follows: The defendants are the district township of Red Oak, in the county of Cedar and state of Iowa,
To the petition as amended the defendant demurred, upon the ground “that said petition shows upon its-face that defendants, Alexander Murray, James Smith and other persons named as defendants, are public officers, and that the said action is brought for the enforcement of an official duty against them as public-officers; and plaintiff’s petition shows upon its face that the remedy sought is barred by the statute of limitations, because it was not brought within three years of the recovery of the plaintiff’s judgment.” This demurrer was overruled, and the defendants thereafter-filed an answer, which denied that it was the duty of' the board of directors to certify to the board of supervisor’s an amount sufficient to pay the judgment, and > denied that the defendants had the right and power to-estimate and' return the amount necessary to pay the judgment, but contained no general denial. The last four divisions of the answer are as follows :
“ Fifth. Defendants further aver that plaintiff is not entitled to a peremptory writ of mandamus, or any writ, to compel defendants to estimate or levy funds for the payment of said judgment, as asked L-y plaintiff, for the reason that such relief-is barred by the .statute of limitations, more than three years having elapsed since plaintiff was entitled to proceed, if at all, by such remedy. Sixth. In answer to the amendment of the plaintiff filed pending the first demurrer, defendants say that the plaintiff was never enjoined from pro- - ceeding to the collection of said judgment at any time, nor were the defendants affected by or restrained by said inj unction, nor did said injunction in any way prevent-*635 tlie plaintiff from taking the remedy he now seeks.. Seventh. Defendants further aver that, in the proceedings in which said judgment was obtained, and which are fully set out in the petition, the plaintiff, by his own pleadings and acts, brought about a decision and adjudication of the court to the effect that neither the district township, its board of directors or the plaintiff were bound by the said injunction, and plaintiff is now estopped from alleging or claiming that he or they were either of them so affected or restrained. Eighth. Defendants further state that, by the pleadings, proceedings- and records set out in said amendment to his petition plaintiff is estopped from alleging or claiming' that he was affected by said injunction, and in support of all such matters of estoppel defendants refer to the pleadings and records in the said exhibits and causes set out. in plaintiff’s original petition, and the amendment thereto.”
The plaintiff moved to strike from the answer all portions which pleaded the statute of limitations, and all matters passed upon by the court in overruling the demurrer, upon the ground that “such matters and facts have been adjudicated against the defendants on the ruling of the court upon the defendants’ demurrer to the plaintiff’s amended petition herein, which demurrer was overruled by the court, and that such portions of defendants’ answer are but a repetition of matters and facts passed upon in said ruling.” The motion was sustained, and the divisions'of the'answer heretofore set out were stricken from the answer. Of that action, and the subsequent rendition of judgment,, the appellants complain.
I. ■ If the issue tendered by those portion's of the answer stricken out were adjudicated in the ruling on the demurrer, then the ruling on the motion to strike was correct. Kissinger v. City of Council Bluffs, 73 Iowa, 171. By failing to stand on their demurrer, and pleading over, the defendants lost the right to object to any error the court may have committed in overruling the-demurrer. The appellants contend, however, that the
II. The appellant contends that the question of an estoppel was first raised by the seventh and eighth divisions of the answer. It is true it was not raised in terms by the demurrer, but, so far as it was set out in the division named, it was necessarily involved in the decision. The question presented to the court for its determination was whether the facts disclosed by the pleadings showed that as to plaintiff the time during which the injunction was in force was a part of the time limited for the commencement of the action. The court decided the question in the negative, and thus held, in effect, that the plaintiff was entitled to rely upon the injunction as preventing the running of the statute. Whether that decision was correct is a question not presented by this appeal.
We conclude that the ruling of the district court in sustaining the motion to strike was correct. Its judgment is, therefore, affirmed.