Brown v. Correll

• Decision Date: 12 December 1939
• Docket Number: 44844.
• Parties: BROWN v. CORRELL et al.
• Court: Iowa Supreme Court

288 N.W. 907

227 Iowa 659

BROWN v. CORRELL et al.

No. 44844.

Supreme Court of Iowa.

December 12, 1939

Appeal from District Court, Page County; R. E. Hines, Judge.

Action at law based on two promissory notes. Defendants filed answer and counterclaim. Thereafter, defendants withdrew answer and counterclaim and filed a demurrer. Plaintiff filed resistance; court overruled demurrer; defendants elected to stand on demurrer and judgment was, accordingly, entered for plaintiff. Defendants have appealed.

Affirmed.

Frank Wisdom and Robert L. Burt, both of Bedford, for appellants.

Stipe Davidson & Davidson, of Clarinda, for appellee.

HAMILTON, Justice.

The petition was in two counts: Count I involved a note signed by both defendants, and Count II involved a note signed by only one of the defendants. The action was commenced for the June 1938, term and was aided by attachment in which certain persons were garnisheed. When the notice of garnishment was served on them, they stated they would appear and give answer in court and gave no other answer, but they did not appear in court. April 5, 1938, defendants filed an answer and counterclaim. The answer was a general denial; counterclaim was for wrongfully suing out the attachment. No other defense was urged. The case passed over the June term and also the September term. On October 18, 1938, six months after issue was joined on the petition, the defendants filed a demurrer which is prefaced with the statement that " for the purpose of filing the demurrer, the answer and counterclaim is withdrawn." The grounds of the demurrer was misjoinder, both of parties and causes of action. No leave of court was obtained and neither did the adverse party consent to the withdrawal of the answer and counterclaim. Plaintiff filed resistance, alleging waiver and setting up the length of time the action had been pending, and contended that it would be abuse of discretion for the court to permit the filing of a demurrer under such circumstances. The trial court overruled the demurrer. Defendants stood on their demurrer and judgment was entered against the defendants and against the garnishees. Defendants, only, have appealed.

It is a matter wholly within the sound discretion of the trial court to permit the withdrawal of a pleading for the purpose of filing a demurrer or motion. Our statute expressly provides (Sec. 11135, 1935 Code): " All demurrers and motions assailing a pleading shall be in writing, and filed before answer or reply has been filed to the pleading assailed, * * *."

It is also provided, by Section 10963, that: " The court, at any time before the answer is filed, upon motion of the defendant, shall strike out of the petition any cause or causes of action improperly joined with others." (Italics ours)

And Section 10964 provides that: " All objections to the misjoinder of causes of actions shall be waived, unless made as provided in section 10963."

Clearly, the filing of the answer, in this case, was a waiver of the right to proceed under Section 10963 by motion. Likewise, the demurrer, if proper, was attempted to be filed after answer had been filed.

While there is no statutory provision granting permission to withdraw a pleading, in common practice, courts...