Back v. Back

• Decision Date: 09 April 1910
• Citation: 125 N.W. 1009,148 Iowa 223
• Parties: REACKE BACK, Appellant, v. AMIEL J. BACK, Executor of the Estate of WILLIAM BACK, Deceased
• Court: Iowa Supreme Court

125 N.W. 1009

148 Iowa 223

REACKE BACK, Appellant, v. AMIEL J. BACK, Executor of the Estate of WILLIAM BACK, Deceased

Supreme Court of Iowa, Des Moines

April 9, 1910

Appeal from Ida District Court.--HON. Z. A. CHURCH, Judge.

IN a probate proceeding for the settlement of the estate of William Back, deceased, plaintiff alleged that she was the widow of the decedent, and asked an order directing the executor to turn over and deliver to her all his exempt personal property. Issue being joined as to whether the plaintiff was the widow of decedent, the court made a specific finding that plaintiff never was the legal wife of said decedent, and was never legally married to him, and therefore dismissed plaintiff's application and entered judgment for the defendant for costs. From this judgment, the plaintiff appeals.

Reversed.

J. B Tourgee and Johnston Bros., for appellant.

M. M White and W. A. Helsell, for appellee.

OPINION

MCCLAIN, J.

The facts out of which this controversy arises are not in dispute, being settled by stipulation of the parties appearing in the record. So far as we deem them material to a disposition of the case, they are as follows: In 1890 William Back, the decedent, married a widow, one Mrs. Dirke, who then had living a daughter by her former husband. The daughter is the plaintiff in this case, In 1900, the wife obtained a divorce from said William Back, and four years later he married the plaintiff. No children were born to William Back by his first marriage, but as a result of his marriage to plaintiff four children were born, all of whom survive him. About two years after the second marriage the divorced wife, mother of the plaintiff, died, and thereafter plaintiff and the decedent continued to live together as husband and wife until his death in 1906. The resistance of defendant to plaintiff's application as widow to have the exempt property set apart to her was on the ground that the marriage was incestuous and void under the provisions of Code, section 4936, which within the definition of "incest" includes marriage between a man and his wife's daughter, and prohibits such marriage. The trial court ruled throughout that, notwithstanding the termination by divorce of the marriage between decedent and plaintiff's mother before the marriage of decedent to this plaintiff, plaintiff continued to be decedent's wife's daughter within the statutory definition, and that the marriage to plaintiff was void in its inception and continued to be void after the death of plaintiff's mother and until the death of decedent, and that, therefore, plaintiff is not the widow of decedent. Before reaching the question as to the correctness of this ruling of the trial court, it will be necessary, however, to pass on a question of practice for the purpose of determining whether such ruling is properly before us for review.

I. Defendant's answer fully set out the facts on which was based the claim that the marriage of decedent to this plaintiff was void, and the demurrer of plaintiff to such answer distinctly raised the question whether it was prohibited under the statute already referred to. This demurrer was overruled, and the plaintiff by standing on her demurrer and submitting to judgment might on appeal have had that question adjudicated in this court. Had she done so, a decision in this court affirming the ruling on the demurrer would have concluded the controversy, and plaintiff would have had no opportunity to raise any other questions of law or fact in the case. She evidently desired, however, to raise other issues and have them adjudicated, and therefore, instead of standing upon her demurrer, she filed a reply in the first division of which she alleged the same facts as to the marriage of decedent to Mrs. Dirke, the procuring of a divorce by her from him, and the second marriage of decedent to this plaintiff, no issue having resulted from the former marriage, as fully as such facts had been already stated in defendant's answer, but with the legal conclusion that she was the due and legal wife of decedent, and entitled to participate as his widow in the estate of said decedent, and in other divisions of her reply she alleged facts relied upon as constituting an estoppel of defendant to assert the invalidity of the marriage. Thereupon the defendant demurred to each division of the reply, challenging the sufficiency of the facts pleaded in the first division thereof as constituting a sufficient reply to defendant's answer for various reasons, one of which was that the facts so alleged were fully set out in the answer to which the reply was filed, and had been held sufficient as a defense by the ruling on the demurrer thereto. This demurrer of defendant to plaintiff's reply was sustained. Thereupon the case came on for trial on the issue arising as to the truth of the facts alleged in defendant's answer which were by our rules of pleading deemed denied by operation of law. By stipulation the plaintiff admitted the facts to be as alleged in defendant's answer, but objected to their being considered in evidence, for the reason substantially that they did not tend to show the invalidity of the marriage between plaintiff and decedent; and this objection was by the court overruled. Thereupon plaintiff offered evidence by way of stipulation as to the facts tending to support the allegations of her reply in estoppel, to the consideration of which defendant objected on the ground that such facts did not tend to support any issue in the case, and this objection was by the court sustained. The court then sustained a motion for defendant on the record to render judgment in his favor for costs, and entered a judgment to that effect, in which it was recited that plaintiff never was the legal wife of decedent, and was not entitled to recover under the law as his widow and dismissed plaintiff's application.

The contention of appellee now is that appellant by filing the reply after her demurrer to the answer had been sustained waived any error in such ruling, and can not now rely upon such alleged error as a ground for reversal. The rule which was well established by earlier decisions of this court, to the effect that, by amending or pleading over after a ruling on a demurrer, the unsuccessful party waived any error in such ruling, had the manifest result of depriving him of an opportunity to insist upon an error of law committed in a ruling on a demurrer if he by amendment stating additional facts relied upon as constituting a cause of action, or by pleading additional matters of defense or reply, sought to raise other issues than those arising on the pleadings as they stood at the time the ruling against him on demurrer was made. For instance, the defendant could not question the legal sufficiency of the allegations of plaintiff's petition, and also question their truth. If he demurred to their sufficiency, and his demurrer was overruled, and standing on his demurrer judgment was entered against him, he could not afterward, when by appeal it had been determined that the ruling on demurrer was correct, get...