Hayden ex rel. Adams v. Anderson

Cole, J. l. Pleas-demurrer, I. A demurrer is proper where a pleading appears on its face, to be defective either in substance or form; it is a declaration that the party demurring will go no further, because the other has not shown sufficient matter against him to require an answer: 1 Chitty on Plead., 661. A demurrer admits the facts pleaded, but controverts their legal sufficiency. A demurrer, then, can only be properly interposed, where the party controverts the legal sufficiency of the matter stated in the entire count or petition. It is not competent to assail a clause, or a sentence, or several clauses or sentences in a count or petition by demurrer. A demurrer is not a pruning hook, with which to rid a pleading of foreign or improper matter; nor is it a sword, with which to attack and cut off redundant or impertinent averments in a pleading. If a count in a pleading contains sufficient statements to constitute a cause of action or defense, it is not vulnerable to a demurrer, although it may also contain very much of foreign, improper, redundant, impertinent or scandalous matter. ISTor can such matter be reached by demurrer; and, therefore, a so-called demurrer “ to all that part,” or “ to so much as sets up,” &c., in a certain count, does not rise to the dignity of a demurrer, and is not entitled to its name, and whenever sufficient matter is stated in such count to constitute a cause of action or defense, such so-called demurrer should be overruled. [163] 3_Mo: tion. Where matter ■which should properly be stated in different counts, is all stated in one count, it may, on motion, be separated (Revision, § 2903), but cannot be reached by demurrer. Swords v. Russ, 13 Iowa, 603. Where matter is redundant or irrelevant, it may be struck out on motion (Rev., § 2946), but redundance cannot be corrected by demurrer. Davenport Gas Light and Coke Company v. The City of Davenport, 15 Iowa, 7. Where a whole pleading is impertinent or immaterial, it may be struck from the files. Mann v. Howe et al., 9 Iowa, 546; Keeny v. Lyon, 10 Iowa, 546. And, where statements are not sufficiently full or specific, the defect cannot be reached by demurrer. Byington v. Woods et al., 13 Iowa, 17. But it must be by motion. Rev., §§ 2918, 2948. The demurrer in this case is not specifically to. any one count of the answer, nor to the answer as a whole, but the several grounds of demurrer are set out as applicable “ to all that part of said answer in which it is alleged,” &c. This manner or form of demurrer, when applied to a part only, of a count or-pleading, is insufficient and bad; but in this case, the several parts of the demurrer, when taken together, cover the entire answer, and it will, therefore, be regarded and treated as a demurrer to the answer. We are the more willing to extend this generous, and almost unwarrantable liberality of construction to the demurrer in this case, for the reason that it was regarded and treated as a demurrer by the court below, as well as by counsel in this court. 3. Res ad-‘Sievin’ II. Under our statute, the entire legal rights of the parties to the action of replevin, in the property in controversy, vin. should he adjudicated in the main action. Rev., §§ 3562, 3563. Such an adjudication in an action of replevin is as conclusive and final as in any other action. Hawley v. Warner et al., 12 Iowa, 42. Under the Code of 1851, § 2001, the defendant might [164] have his right to the property and his damages adjudicated in the replevin action. The replevin action, in which the bond sued on in this case was given, was brought under that Code. Where, in the main action of replevin, the plaintiff fails to recover on a trial, or dismisses his suit, and the court simply ordered a return of the' property replevied, it is competent for the party executing the bond, when sued thereon, to plead and prove that the property was not,owned by the defendant in the replevin suit (Hawley v. Warner, supra; Buck v. Rhodes et al, 11 Iowa, 348); or that his interest was limited or contingent. But where, the plaintiff dismissing his suit or failing, in his action, the defendant proves his right to the property and his damages, and the court renders judgment determining the whole controversy, as might properly be done under the Code of 1851, and as the court should do under the Revision, such adjudication is conclusive as to all the issues involved and thus adjudicated. 4. - Ownership privies. III. Without discussing in detail the several points made by the demurrer, and the various grounds assigned therefor, we will state briefly our conclusions as to the sufficiency of the answer. It is stated in the answer that there never was but the one replevin suit between the parties, and a fair construction of this averment, together with other statements in the answer, shows a sufficient identification of the action and property, mentioned in the answer, as being the same as that set out in the petition. The petition in replevin, as is averred by the petition in this case, and not controverted by the answer, claimed the property as belonging to the plaintiff therein, and the answer denied such ownership. The judgment of the court in that action was adverse to the plaintiff therein, and settled the question of ownership between those parties and tilieir privies, who are estopped [165] thereby. A material fact, showing the damages the 5 _ Damages. defendant in the replevin action was entitled to, wag ta]cing an¿ delivering of the property replevied, by the officer, to the plaintiff in that suit. The plaintiff having failed in his action, the statute (Code of 1851, § 2001) made the defendant’s damages an issue to be determined in that case, and it was determined. The plaintiff therein, upon that issue, might have shown that the property was not taken from the defendant or delivered to him. Whether he did so show or not, is now quite immaterial, for in either case he is equally concluded by the judgment therein, and estopped from again making that issue. If the only interest which the defendant in the replevin action had in the property replevied, was that acquired by virtue of the levy of the Adams’ execution, and that execution had been satisfied by the sale of other property levied upon under it, such fact was material to the issue as to defendant’s damage, and might then have been properly shown. The defendant having already had his day in court on that issue, which was determined adversely to him, cannot again litigate it. That judgment concludes him. 6. Tender: allegation. The answer, as to tender of the property to plaintiff’s attorneys, waiving the question of their right or authority to accept it, is clearly insufficient, in that it does not aver a continuance of the tender, so that the property is placed under the control of the court, subject to be legally vested in the plaintiff, when that sufficiency of the tender was determined. If the property is not thus brought into court, or otherwise placed under its control, and the tender is adjudged sufficient whereby the plaintiff would be defeated in his action, after being thus defeated and turned out of court, he should seek the property, the defendant might refuse or be unable to deliver it, and [166] thereby the plaintiff be remediless. In other "words, the same rule applies as to tender of property, which applies as to tender of money; it must be brought into court, actually or constructively, so as to be subject to its order and control. 7. Res adjudicata neglect. If the defendant introduced no evidence in the replevin action, where he was plaintiff, as to the issues made by the defendant therein, it was either his misfortune or his fault, and upon neither can he base a right to retry the same issues. 8. Judgment: inadvertency. That the judgment was inadvertently rendered by the court, may be good ground for a direct application to set it aside, but cannot be made available, collaterally. 9. Replevin: measure of damages. -A-s to ^ question of the measure of damages, discussed by counsel, it seems to us that the plain-sues for kke use 0f .¿Rams, the execution plaintiff, cannot recover in this action for that use more than the amount still due such execution plaintiff, with its interest and costs. The judgment of the District Court is reversed, and the cause remanded, with directions to sustain the demurrer, and give to defendant leave to amend. Reversed.