Case v. Blood

• Citation: 71 Iowa 632,33 N.W. 144
• Parties: CASE v. BLOOD AND OTHERS.
• Decision Date: 10 June 1887
• Court: Iowa Supreme Court

71 Iowa 632

33 N.W. 144

CASE

v.BLOOD AND OTHERS.

Supreme Court of Iowa.

June 10, 1887.

Appeal from circuit court, Sioux county.

Mandamus to compel the defendants, a part of whom are directors of the independent district of Rock, and the others directors of the district township of Rock, to appoint arbitrators to make an equitable division of the assets of the district township of Rock, held before the organization of the independent district, which covers a part of the territory of the original district township, from which it was separated. A judgment was entered granting the relief sought by plaintiff. The directors of the district of Rock appeal.Bell & Palmer, for appellants.

Van Wagenen & McMillan for appellees.

BECK, J.

1. The cause has been before in this court. See 68 Iowa, 486, 27 N. W. Rep. 470, for facts and pleadings upon which the case was decided. Upon the remanding of the cause, plaintiff filed an amended petition presenting substantially the same facts alleged in the original petition. The relief asked in this amendment is that defendants be required to appoint arbitrators to make an equitable division of the assets of the district township.

2. Defendants now insist that the action was barred by the statute of limitations, which is pleaded as a defense in the answer to the amended petition filed after the cause was remanded to the circuit court. This position is based upon the claim that the amended petition presents a new cause of action which accrued within the time limited by the statute. We think this position is not supported by the facts. The cause of action, in both original and amended petition, is the failure of the defendants to equitably divide the assets of the district township. The relief asked is not identical in these separate pleadings. In the original petition, plaintiff asks that the respective boards of directors be required to meet and make a division of the assets of the district township; and, in case they fail to agree, that the court appoint arbitrators to make such division. The amended petition prays that the respective boards of diretors appoint arbitrators to make such division, and the court appoint a time and place for the meeting of the boards for the purpose of making such appointment. It will not be disputed that the remedy sought is not the cause of action, and is no part of it. The cause of action, if valid, entitles the plaintiff to a remedy. In a proper case, he may change his claim for the remedy without in any manner presenting a new cause of action. This was done by plaintiff in this case. The action after the amendment was simply a continuance of the original action, with a claim for a different remedy. It is not claimed that the cause of action was barred when the suit was originally commenced.

3. The directors of the independent district did not join in the former appeal. It is now insisted that the case as to them is ended, and they were not before the court after the cause was remanded from this court. If they were satisfied with the first judgment, they cannot be presumed to have...