Wright v. Connor

34 Iowa 240 | Iowa | 1872

Beck, Ch. J.

The mandamus proceeding set out in the answer constitutes no defense to plaintiff’s action, l. Mandamus : As there had been no adjudication of the court issuea. upon the matter of the petition and the parties’ rights involved, the issuing of the writ was unwarranted, and defendant cannot be protected under it. The writ of mandamus is issued after judgment in the proper case, and not as original or intermediate process, which seems to have been attempted in this case. This position does not appear to be denied by defendant’s counsel.

2. Practice : demurrar. But they insist that the demurrer was properly overruled, because it does not strike at the whole of the count alleging as a defense the mandamus proceeding. a ¿enmrrer will not lie against a part of a count pleading an entire defense, but must be directed against the whole. This may be admitted to the extent that the whole of a defense must be assailed by demurrer, and that it is not competent to attack redundant or incompetent matter in that way. Haydon v. Anderson, 17 Iowa, 158. But if, through bad pleading, two distinct and independent defenses are contained in one division of an answer, which is' called a count, a demurrer may be directed at one of them, if it should be esteemed insufficient in law.

The party objecting to such a pleading ought, by proper motion, require the answer to be divided properly, or demand that the defendant elect upon which part of the double count he will stand. Rev., §§ 2903, 2934. But, omitting to do so, he may regard the defenses as though they were stated in distinct counts, and assail them by separate pleadings. The defendant would not be permitted to set up the defective form of his answer to protect it from a demurrer directed against its substance.

In the case before us the division of the answer or count containing the defense assailed by the demurrer contains another distinct defense. The demui’rer did not attack both, but only brought in question the one above stated. Under the rule just announced this is admissible. As we have seen, the defense was insufficient in law. The demurrer ought, therefore, to have been sustained.

Reversed.