Burns v. Chicago, Fort Madison & Des Moines Railway Co.

Ladd, J. [387] "We are not inclined to open for further consideration the questions determined in White v. Railway Co., 64 Iowa, 281. It was there held that money paid to the 'sheriff in ad quod damnum proceedings was by_way of secur [388] ity to the landowner, and was not payment to him, and that the latter’s “title and right of possession can be extinguished only by the payment of the damages assessed.” In other words, nothing short of actual payment,' or its equivalent, to the owner, of the damages assessed, constitutes compensation for property wrested from him under the power of eminent domain. The opinion plainly shows that no importance was attached to the fact of the sheriff’s insolvency. The answer first filed admitted that the balance of three hundred and seventy-five dollars paid by 'it to the sheriff had not been turned over to the plaintiff, and that both the sheriff and the defendant had refused toi make sixch payment. No defense was pleaded, and all that remained for the court to do 'was to’ enter judgment. As no issue was presented by the pleadings as they then stood, the court did not abuse its discretion in refusing to permit other parties to be brought in as defendants. Before this can be done, there mtist be a controversy, the determination of which will affect the rights of others. Sections 3462-3466, Code. [388] II. ' An amendment was filed, after the ruling on the motion, adding three divisions to the answer. In the second it was averred that the defendant refused -and declined to 'pay-the three hundred and seventy-five dollars awarded by the sheriff’s jury. It denied -that it had, been notified of the sheriff’s failure to pay the plaintiff, and alleged that demand had not been made before the beginning of the action,. the solvency of the sheriff and his bondsmen, and plaintiff’s failure to proceed against them. In the third division, compliance with an order of court was pleaded. In the fourth division the defendant averred its refusal to pay, and that the sheriff had paid the plaintiff. It will be observed that the admissions of the original petition, which formed the first division of the answer as amended, were not withdrawn, nor was matter pleaded destroying their effect. In other words, in one division the defendant admitted that the sheriff had refused payment, and that the plaintiff had [389] not received the award, and in the others alleged that no> demand had been made, and the sheriff had paid the money to the plaintiff. If these divisions be considered. separately, then in one the right of recovery is eon-ceded by admitting the only matters in controversy, while in the others these are denied. True, an admission . ... . í m one division will not ordinarily be taken against the pleader, in passing upon' the issues raised in another; for inconsistent defenses may be pleaded, and should be separately considered. And there may be a plea by way of confession and avoidance. As seen, this is not such a case. The first division sets up no defense, nor are the admissions in any way avoided. In it the defendant admits facts controverted in other divisions, which left no issue ü> try, and amounted to a concession of the plaintiff's right to' recover as prayed. The plaintiff's cause of action having been conceded in that division^ there was no occasion to look to others. Under such circumstances, the court was authorized to take the averments of the division most unfavorable to the pleader. It is only when tire original answer has been superseded by a subsequent pleading that its statements arei not to be taken against the defendant -without being introduced in evidence. Shipley v. Reasoner, 87 Iowa, 555; Leach v. Hill, 97 Iowa, 81. Had the defendant admitted and denied in the same division, or in an answer not divided, there could be no question but that the admission, rather than the denials, would be taken. The fact that the denials are all in one division, and tire admissions in another, cannot change the rule, provided the admissions, as such, concede the plaintiff's cause of action. When the right of recovery is once admitted, unless this is withdrawn or in some way avoided, no issue is tendered. Whether proof of demand on the sheriff, and of nonpayment, was essential in order to' maintain the action, we do not determine. On that proposition we are not agreed. What we do hold is that, conceding such proof to be necessary, no such issue was tendered. [390] 3 III. It is said that payment, was made in strict compliance with the order of the court. The defendant was “adjudged to pay all of said amount to the clerk of this court within thirty days from this date, except any sum which was paid by the defendant to the sheriff after the condemnation. And the sheriff to whom defendant paid the original awards is hereby ordered forthwith to pay into' the hands of the clerk of this court the money paid to him on the award made hy the sheriff’s jury.” But the statute expressly directed that no judgment be entered, except for costs, and that the amount of damages ascertained be entei’ed of record. Section 1257, Code 1873. In. the light of this statute, the entry can be construed to do nothing more than give defendant thirty days within which to. make payment of a part, and an order on the sheriff to turn the balance over to the clerk. It does not purport to. fix liabilities in any other respect, and furnishes no defense to this action.. — - Affirmed.