District Township v. District Township

Day, J. 1. pi,eading : amendment: demurrer.11 I. Appellees insist that the plaintiffs, by electing to amend their petition, have submitted to the demurrer first filed, and that they cannot now assign as error the action of the court thereon. This position of appellee we think is correct, and we will adopt it in the further consideration of the case. 2. —:-: murrer. de" II. Plaintiffs filed an amendment to their petition. This amendment and the pleading originally filed constitute plaintiff’s petition. This fact appellees recognize in demurring to “ the petition of plaintiffs as amended.” The second demurrer of defendants assigns specific objections to the petition: It is a waiver of the original demurrer. It presents all questions which the appeal submits for our consideration. [517] 3..-: partionto. III. Tlie first three grounds of demurrer are in substance that the District Township of Oskaloosa has no corporate existence, and cannot be sued. This would have been a very good ground oi demurrer n interposed by, or on behalf of, the District Township of Oskaloosa. But that district does not appear, and does not join in the demurrer. Surely it can be no ground of defense to the remaining sixteen independent districts, whose corporate existence and legal capacity are not denied, that the District Township of Oskaloosa cannot be sued. Suppose the want of capacity of the District Township of Oskaloosa had not appeared upon the face of the petition. Could the other defendants, whilst admitting their own corporate capacity, defend themselves by showing that their co-defendant, the District Township of Oskaloosa was not a corporation ? Manifestly not. The only causes of demurrer admissible are prescribed in the Code, section 2648. The cause here assigned is not one of them. The petition, at the most, contains a misjoinder of parties defendants. Such objection is not ground of demurrer. Pinckney v. Wallace, 1 Abbott, 82; Voorhies v. Baxter, Id., 44. It. can be taken advantage of only by a motion to strike out the name of the party improperly joined. Dean v. English, 18 B. M. 136. 4_._. practice. IV. The latter ■ part of the seventh ground of demurrer, that the various independent districts have no community of interest, or joint interest, may be disposed of in the same manner. It is not a ground of demurrer. If the fact be as stated there is a misjoinder of parties or of causes of action. The objection must be insisted upon by motion. Code sections 2630, 2632, 2633 and 2634. Dean v. English, 18 B. M., 136. 5. —:-; paciiy tu sue. V. The first part of the seventh ground of objection is that the peiition shows that the District Township of White Oak, which is named as one of the plaintiffs, has no legal or actual existence, and no power to sue or be sued. No objection is made to the legal capacity of the eight independent districts, plaintiffs, to sue. If the improper joinder with plaintiffs of a party who has legal capacity to [518] sue, does not vitiate a petition as to the other parties, it would seem for reasons at least as cogent that the joinder of a party who has no legal capacity' would not have that effect. That the plaintiff has not legal capacity to sue is, and must be, a good ground of demurrer. For we cannot conceive of a party being held legally liable to one who has no legal rights. But it would be difficult to assign a good reason why a party should escape liability to one who has rights, and the capacity to enforce them, simply because he has united with him one who has no rights and no such capacity. The plain and easy remedy in such case is for the defendant to move to strike from the petition the name of the party improperly joined. 6 _. de_ murrer. YI. The remaining three causes of demurrer, although interposed to the whole petition, yet really affect only that portion of i't which asks for a mandamus. They not g0 a£ aq t0 t]ie sufficiency of the petition as it stood before the amendment was filed. That petition, in so far as any objections presented in the.demurrer are concerned, states a good cause of action. It would, then, be manifestly improper to sustain a demurrer to the entire petition, simply because a portion of it demanded relief based upon facts improperly pleaded. A demurrer can be properly interposed only, where the party controverts the legal sufficiency of the matter stated in the entire count or petition. Hayden v. Anderson, 17 Iowa, 158. It follows for the various reasons considered that the demurrer was improperly sustained. .No other question is properly presented for our consideration. Reversed. Seevers, Oh. J., having been of counsel, took no part in the decision of this case.