Rawson v. Guiberson

Wrigi-it, C. J.- — Plaintiffs have suggested some objections to the sufficiency of the plea in abatement, which relate more to its form than substance. No such objections were made, however, in the court below, and we will not therefore consider them. It is also urged, that under the Code all technical forms of actions and .pleadings are abolished; that a plea in abatement, is a technical plea; that all pleas must be, in the nature of pleas, in bar ; that this was not such, but presented an immaterial issue; and therefore, should have [509] been overruled. In this position, we cannot concur. While all technical forms of actions and pleadings are abolished, (Code, section 1733), it by no means follows that we have abolished all the rules and principles which formerly governed pleadings and trials in common law actions. Baltzell v. Nosler, 1 Iowa, 588. A plea to the jurisdiction, or of another action pending, is as proper and legitimate now as before the Code. So it is in case of a misnomer, or of the misjoinder or non-joinder of parties. The consequences to result, when the plea is sustained, under the Code, as compared with the common law practice, presents a different question. And it is with reference to such consequences, that the Code provides so liberally for amendments. See sections 1755-60. It is next insisted, that where two actions are pending, the plaintiff should be driven by rule, or otherwise, to elect upon which he will proceed. This argument has no place here, for the reasons that plaintiffs, by their replications, aver that the former action was not pending. And, therefore, without considering the correctness of their position in a proper case, we need only say, that according to their own pleadings, there was no other action pending upon which they could elect to proceed. But in any event, it is said that plaintiffs were entitled to a trial on the issues, and that the court should not, upon the jdeadings alone, have dismissed the case. This position assumes that the issues made were not tried upon proof made, but upon the pleadings. Of this, however, there is nothing to satisfy us. The cause was submitted upon the issues joined, and for anything that appears to the contrary, was heard in the usual maimer, upon the respective proofs and allegations of the parties. It is said that the record attached to the plea, is not full. There is nothing in the record itself, to rebut the presumption that it is full. But if there was, this would not prevent the introduction of other proof upon the trial of the issues. And finally, appellants urge that there was no denial of their amended replication; that it was, therefore, to be ta [510] ken as true; and if so, the finding should have been in . their favor. What is that replication ? An averment that since the commencement of the present action, plaintiffs have dismissed the suit mentioned in defendants’ plea. If dismissed before the commencement of the present suit, of course the plea should have been overruled. If dismissed after, and before plea pleaded, the authorities are not uniform as to the effect. When dismissed after plea pleaded, all the cases agree in holding that the plea should be sustained. Taking the amended replication as true, it only appears that the first action was dismissed after this suit was commenced, but whether before or after plea pleaded, is not stated. Upon no fair principle can we presume, that it was before the plea in abatement was filed. The argument stands thus: The amended replication being undenied, it is to be taken as true. It is true, therefore, that the first action was dismissed after the present one was commenced. Put whether dismissed before or after plea pleaded, is not stated. If after, then the order of the court sustaining the plea, was manifestly right. Every presumption is in favor of the action of the district court; that court, after duly inspecting the whole case, having decided adverse to the position of the plaintiffs, we are compelled to conclude from this record, that the fact as presented, justified the position that the first suit was dismissed after plea pleaded. We need not, therefore, determine what would have been the effect, if it appeared that the first action was dismissed before plea filed. If the finding of the court would have been erroneous in that case, it would be nevertheless correct, under the other hypothesis; and as the latter will sustain the judgment below, we should be governed by it. Conrad & Co. v. Baldwin, 3 Iowa, 207; 1 Chitty on Pleadings, 272. Judgment affirmed.