Dumont v. Peet

• Decision Date: 24 October 1911
• Citation: 152 Iowa 524,132 N.W. 955
• Parties: DUMONT ET AL. v. PEET ET AL.
• Court: Iowa Supreme Court

152 Iowa 524

132 N.W. 955

DUMONT ET AL.

v.PEET ET AL.

Supreme Court of Iowa.

Oct. 24, 1911.

Appeal from District Court, Jones County; Milo P. Smith, Judge.

Action in equity to enjoin the defendants from interfering with plaintiffs' telephone line and wires. Judgment for plaintiffs. Defendants appeal. Affirmed.Herrick, Cash & Rhinehart, for appellants.

Clifford B. Paul, for appellees.

SHERWIN, C. J.

The original petition alleged that the plaintiffs J. B. Dumont and G. A. Peet were members and shareholders in the Martelle Telephone Association, and were, respectively, president and secretary thereof; that the Martelle Telephone Association was a voluntary unincorporated association engaged in conducting a telephone system between the towns of Anamosa and Martelle, Iowa, for the mutual benefit of its members; that the members of the said association are too numerous to be made parties plaintiff in the action, and that the said J. B. Dumont and G. A. Peet bring this action in their own behalf, and by the authority and in the behalf of all others who are members and shareholders in the said association; that the said defendants R. M. Peet and George Calvert are members of and shareholders in the Viola & Anamosa Telephone Company, and that the other defendants, William Finnegan, Mark Newhart, Fred Ross, and Fred Mercer, are telephone users and holders in said company, and that said company is a mutual voluntary association, conducting a line between the villages of Fairview and Viola, Iowa. It was further alleged in the petition and amendments thereto that in May, 1900, the members of the Viola & Anamosa Telephone Company were, without any consideration whatever, given a temporary license to attach their line to the system built by the plaintiffs at the village of Fairview, such license to be revoked at any time in the future when the plaintiffs deemed proper and necessary to do so; that in February, 1909, the plaintiffs did revoke and cancel said license, and notified the defendants not to connect their line with the lines of the plaintiffs, and, the defendants refusing to disconnect their said line, the plaintiffs disconnected them; that afterwards the defendants wrongfully, and in disregard of the rights of plaintiffs, several times connected their line with the line of the plaintiffs at Fairview, and are wrongfully using the plaintiffs' line to receive and transmit messages, and are threatening to continue to do so, should plaintiffs again disconnect said line; that the defendants are numerous, and that plaintiffs' remedy at law would necessitate the bringing of successive actions against the individual defendants, and would result in a multiplicity of suits. The defendants demurred to the petition as amended, on the general ground that it did not entitle the plaintiffs to the relief demanded, and, further, because it was not affirmatively alleged that plaintiffs would suffer any great or irreparable injury, or that the plaintiffs had not an adequate remedy at law. This demurrer was overruled, and the defendants answered, denying specifically some of the allegations of the petition and admitting others. The trial then proceeded on the issues thus framed, and, after the plaintiffs had concluded their evidence, the defendants filed an amendment, pleading an estoppel, which we shall have occasion to notice further as we proceed.

[1] The appellants' first contention is that their demurrer should have been sustained, because the plaintiffs could not maintain the action. This contention might well be disposed of by applying the rule that, where want of capacity to sue is apparent on the face of the petition, it is ground of demurrer, and, unless demurred to specially, it is deemed waived. Code, §§ 3561 and 3562; Anderson v. Acheson, 132 Iowa, 744, 110 N. W. 335, 9 L. R. A. (N. S.) 217;McDonald v. Jackson, 56 Iowa, 643, 10 N. W. 223.

[2] But, aside from this question of practice, we think it clear that the allegations of the petition brought it within the rule of section 3464 of the Code, and of the following cases: Arts v. Guthrie, 75 Iowa, 677, 37 N. W. 395;Fleming v. Mershon, 36 Iowa, 413;Laughlin v. Greene, 14 Iowa, 92. The cases relied upon by the appellants to sustain their position did not present facts similar to the facts in this case, and hence are not controlling.

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