Goldsberry v. Goldsberry, 42212.

• Decision Date: 06 February 1934
• Docket Number: No. 42212.,42212.
• Citation: 217 Iowa 750,252 N.W. 531
• Parties: GOLDSBERRY v. GOLDSBERRY. CONRAD v. GOLDSBERRY.
• Court: Iowa Supreme Court

217 Iowa 750

252 N.W. 531

GOLDSBERRY

v.GOLDSBERRY.

CONRAD

v.GOLDSBERRY.

No. 42212.

Supreme Court of Iowa.

Feb. 6, 1934.

Appeal from District Court, Ringgold County; Geo. A. Johnston, Judge.

This is a proceeding by Edith B. Conrad, the executrix of the estate of Frank P. Goldsberry, deceased, to obtain the modification of a decree for alimony granted in a divorce proceeding, wherein the said Lena M. Goldsberry was plaintiff and the said Frank P. Goldsberry was defendant. In the divorce proceeding, Lena M. Goldsberry obtained a divorce from her husband, Frank P. Goldsberry. As a part of the relief granted the said Lena M. Goldsberry in the divorce proceeding, was a decree for alimony. After the judgment and decree for the divorce and alimony was entered in the district court, Frank P. Goldsberry died. It is to modify the aforesaid decree for alimony that the present proceeding is brought by the executrix of Frank P. Goldsberry's estate. The district court denied the modification, and the executrix appeals.

Affirmed.

Wisdom & Kirketeg, of Bedford, for appellant.

Lewis & Lewis, of Mount Ayr, for appellee.

KINDIG, Justice.

Lena M. Goldsberry and Frank P. Goldsberry were married at Bedford, Iowa, on July 28, 1926. In a suit brought by the appellee, Lena M. Goldsberry, on June 29, 1931, a divorce was granted her from her husband, Frank P. Goldsberry. As a part of the same decree, the appellee, Lena M. Goldsberry, was granted alimony from Frank P. Goldsberry. The decree for the alimony was based upon a written stipulation executed by the husband and wife. It was decreed that Frank P. Goldsberry pay and deliver to the appellee, Lena M. Goldsberry:

First. $5,100 payable as follows: $2,000 in cash and the remaining $3,100 to be paid in this manner:

(a) There was to be credited thereon $400 for a Plymouth automobile then and there delivered by Frank P. Goldsberry to the said Lena M. Goldsberry, and

(b) The remaining $2,700 of such alimony was to be and was evidenced by a promissory note signed by Frank P. Goldsberry and secured on certain real estate. This note was payable to Lena M. Goldsberry on or before January 1, 1932, with interest thereon at the rate of 5 1/2 per cent. per annum.

Second. The fruit on the farm for the current season, together with vegetables in the garden and melons then growing on the land. Likewise she was to have the chickens and certain furniture.

Frank P. Goldsberry died testate on November 17, 1931. Edith B. Conrad, the appellant, was appointed executrix under the will on December 12, 1931. Then on December 20, 1932, she filed an application in the present proceedings to modify the decree for alimony previously granted in the divorce action between Lena M. Goldsberry and Frank P. Goldsberry. In her application, the appellant, executrix, attacks the stipulation for alimony and the decree therefor itself. However, she does not ask the court to set aside the decree for alimony. On the other hand, the appellant, executrix, by filing her application for modification, confirms the decree for alimony and upon that basis asks that it be modified. When thus confirming the decree for alimony, the appellant executrix then asks for a modification of the decree on the theory that the property held by the estate has greatly depreciated in value and that the estate of Frank P. Goldsberry is unexpectedly required to pay an obligation of $529 on which the said Frank P. Goldsberry was surety for some third person. Lena M. Goldsberry is in no way responsible for, and will receive no benefit from, the payment of this obligation. It is said too that the parties, in drawing the stipulation for the alimony, greatly overvalued the property of Frank P. Goldsberry.

A great many pleadings were filed in the modification proceedings. An answer, a resistance, a motion, and a demurrer were filed without regard to the effect of filing new pleadings without a ruling on those formerly filed. At no time, however, was objection made by either party to this method of filing pleadings. Finally, on June 6, 1933, the parties presented to the district court the demurrer of the appellee, Lena M. Goldsberry, which attacked the application of the appellant, executrix, for modification of the aforesaid alimony decree.

Generally speaking, the demurrer was based upon the thought that the application for the modification did not show the necessary facts required by the statute authorizing the modification of a decree for alimony. The demurrer was sustained by the district court. Thereupon the appellant executrix elected to stand on the demurrer, and suffered judgment to be entered against her.

Many questions are argued before the main point of the controversy is reached. We will now discuss, in the following order, the preliminary questions as well as the fundamental point involved. Throughout our discussion hereafter, the executrix will be referred to as the appellant, and Lena M. Goldsberry will be called the appellee.

[1] I. It is said by the appellant that this is a proceeding in equity, and therefore her application for a modification of the alimony cannot be attacked by demurrer. A demurrer, the appellant argues, may be employed in law actions only (see section 11141 of the 1931 Code); while in equity proceedings the legal sufficiency of the pleading must be tested, not by demurrer, but by a motion to dismiss. Section 11130 of the 1931 Code provides: “In actions triable in equity, every defense in point of law arising upon the face of the petition, cross-petition, petition of intervention, answer, counterclaim, or reply, as the case may be, for misjoinder of parties, or which in an action triable at law may be made by demurrer, shall be made by motion to dismiss or in the answer or reply.” Consequently, the proper proceeding is not to file a demurrer in an equity suit, but rather, under the statute, there should be filed therein a motion to dismiss. American Surety Co. v. Leach, 206 Iowa, 1355, 220 N. W. 34.

[2] Had the appellant, in the case at bar, objected to the filing of the demurrer by the appellee, such objection would have been good. But the appellant did not thus object. Instead of objecting, the appellant acquiesced in the demurrer by arguing the same and calling upon the district court to determine the sufficiency of the application to modify the alimony decree as measured by the demurrer. Responding to the invitation of the appellant, the district court treated the demurrer as a motion to dismiss, and ruled accordingly. Not only that, but the appellant elected to stand upon the demurrer and suffer judgment to be entered against her. Thereby the appellant waived her statutory right to insist that a demurrer, in lieu of a motion to dismiss, cannot be filed against her application to modify the decree for alimony. Heitzman v. Hannah, 206 Iowa, 775, local citation, 779, 221 N. W. 470;McPherson v. Commercial Building & Securities Co. et al., 206 Iowa, 562, local citation, 566, 218 N. W. 306;Overland Sioux City Co. v. R. J. Clemens, 189 Iowa, 1293, local citation, 1296, 1297, 179 N. W. 954. The demurrer, so called, was sufficient in form to be a motion to dismiss. So, in view of the fact that the appellant made no attack thereon, but by her conduct induced the district court to treat the demurrer as a motion to dismiss, she cannot now complain of the action of the district court in treating the demurrer as a motion to dismiss. Had the district court refused to treat the demurrer as a motion to dismiss, it would not have abused its discretion; but, as before explained, the district court in its discretion considered the demurrer as a motion to dismiss. Under these circumstances it cannot now be said that the district court abused its discretion.

[3] II. Furthermore, it is argued by the appellant that the district court wrongfully sustained the demurrer because the appellee, after filing the demurrer, filed an answer to the appellant's application for modification of the alimony decree.

It is true, generally speaking, that by filing an answer after previously filing a demurrer, the pleader waives the demurrer. Section 11135 of the 1931 Code provides: “All demurrers and motions assailing a pleading shall be in writing, and filed before answer or reply has been filed to the pleading assailed, except as provided in this chapter, and specify and number the causes on which they are founded, and none other shall be argued or considered. Only one motion of the same kind and one demurrer assailing such pleading shall be filed, unless such pleading is amended after the filing of a motion or demurrer thereto.” (Italics supplied.) Therefore, had the district court, in the case at bar, overruled or failed to consider the demurrer on the theory that it was waived by the filing of the subsequent answer, that tribunal would have acted within its discretion. Bliss v. Watson, 208 Iowa, 1199, local citation, 1202, 227 N. W. 108;Sloanaker v. Howerton, 182 Iowa, 487, local citation, 492, 166 N. W. 78.

[4][5] Nevertheless, the appellant had a right to waive the statutory provision, and with the appellee adopt a theory of trial contrary thereto. Wilson v. McIntire, 73 Iowa, 711, 36 N. W. 715. In that case, we said: “The only point urged by counsel is that defendant by answering waived the demurrer, and it was not competent for the court, after the answer was filed, to pass upon the questions raised by the demurrer. * * * The court, in the exercise of the discretion with which it is clothed, might have permitted the withdrawal of the answer, and the filing of the demurrer. What was done was but the equivalent of that; and we do not see how any of plaintiff's rights could have been prejudiced by the practice adopted by the court.” To the same effect see Lundbeck v. Pilmair, 78 Iowa, 434, 43 N. W. 271;Iowa Coal Washing Co. v. Consolidation Coal Co., 204 Iowa, 202, local citation, 205, 215 N. W. 229.

So, in the case at bar, the...