DeVoe v. Dusey

• Decision Date: 07 February 1928
• Docket Number: No. 38612.,38612.
• Parties: DEVOE v. DUSEY.
• Court: Iowa Supreme Court

205 Iowa 1262

217 N.W. 625

DEVOE

v.DUSEY.

No. 38612.

Supreme Court of Iowa.

Feb. 7, 1928.

Appeal from District Court, Union County; Homer A. Fuller, Judge.

Action for damages for libel. The defendant pleaded: (1) A general denial; (2) justification; (3) qualified privilege; (4) mitigation. The plaintiff demurred to the three affirmative defenses, and his demurrer was sustained. From such ruling of the court, the defendant appealed. Dismissed.Higbee & McEniry, of Creston, for appellant.

Geo. A. Johnston and L. J. Camp, both of Creston, for appellee.

EVANS, J.

[1] There was no election by the defendant to stand upon his pleading. Nor was any judgment entered against him. His appeal was therefore premature. We have held repeatedly that a party may not appeal from an adverse ruling on a demurrer, unless he elects to stand upon his pleading or suffers judgment for want of pleading or of amendment to his pleading. Our cases on this subject are cited and reviewed in Hansen v. Independent School District, 193 Iowa, 417, 186 N. W. 922, 21 A. L. R. 260. The reason for such a rule is manifest. A ruling on a demurrer adjudicates nothing except upon the election of the defeated party to stand upon his pleading. To allow an appeal from a mere ruling by the trial court in settling the issues would open the door to endless appeals to this court from rulings that lack finality. In the cited case we said:

“True it is, as contended by appellant, that, if plaintiff goes to trial or pleads over, he waives his demurrer and his right to complain of the ruling thereon; and if he stakes his case upon the demurrer, in order to take the appeal, he waives the right to a trial on the facts. This is not so great a hardship as the appellant would make it. A ruling on a demurrer in and of itself settles nothing. It becomes an adjudication only if the defeated party chooses to make it such. He makes it such by standing upon his pleading. He has an equal right to choose to try his case upon its full merits, both of fact and of law. Though he thereby waives his demurrer and his right to appeal from an adverse ruling, yet he waives no legal right affecting the merits of his case. Whatever legal argument was involved in his demurrer is still available to him. The trial court which ruled adversely to him is not precluded from changing its views, upon the final submission of the case upon its merits. If, therefore, the complaining party is not willing to stake his case upon his demurrer, an appeal thereon would become merely a dilatory process. A ruling by us in such a case, like a ruling by the trial court, would settle nothing, if the appellant still had the right to a trial below upon the facts, and to dispute there the allegations which he has admitted by his demurrer. * * * It is, therefore, in the interest of speedy litigation and of effective appellate procedure that the rule in such case should be just what it is.”

In Wilcox v. McCune, 21 Iowa, 294, we said:

“To entitle a party to the benefit of an exception to the action of the court in sustaining or overruling a demurrer, he must stand by his pleading or demurrer.”

In Thorpe Bros. v. Smith, 86 Iowa, 410, 53 N....