Hurd v. Odgaard, 63135

• Decision Date: 15 October 1980
• Docket Number: No. 63135,63135
• Citation: 297 N.W.2d 355
• Parties: Morris C. HURD, and Daniel D. Williamson, Appellants, v. Thomas C. ODGAARD, Wayne Swanger, Clifford Friedrichsen, and Helen Wanberg, Appellees.
• Court: Iowa Supreme Court

Page 355

297 N.W.2d 355

Morris C. HURD, and Daniel D. Williamson, Appellants, v. Thomas C. ODGAARD, Wayne Swanger, Clifford Friedrichsen, and Helen Wanberg, Appellees.

No. 63135.

Supreme Court of Iowa.

Oct. 15, 1980.

Morris C. Hurd and Daniel D. Williamson, pro se.

Robert J. Belson, Holstein, for appellees.

Considered by REYNOLDSON, C. J., and LeGRAND, McCORMICK, McGIVERIN and SCHULTZ, JJ.

LeGRAND, Justice.

This is the second appeal involving this same controversy. In 1978 we annulled a writ of certiorari against the district court on the ground the plaintiffs had no standing to challenge the order of the judge providing for trials at places other than the courthouse. See Williamson v. District Court, 271 N.W.2d 727 (Iowa 1978). This mandamus action seeks to require the Ida County supervisors to repair the courthouse so that court business may again be transacted there. The trial court sustained defendants' motion for judgment on the pleadings, and plaintiffs appeal. We reverse and remand for further proceedings.

The history of this case goes back a number of years. It is conceded that the Ida County courthouse is in a state of disrepair and that some substantial corrective measures are necessary. Plaintiffs (who are practicing lawyers in Ida County) assert they are taxpayers and citizens of Ida County and that defendants should be compelled to comply with the requirements of the state fire marshal in order that the building be made safe for occupancy.

This appeal presents two questions: (1) the standing of plaintiffs to bring the action and (2) if successful on this issue, are they entitled to judgment on the pleadings.

I. Plaintiffs filed a motion for judgment on the pleadings, which was overruled. The order overruling pointedly suggested a similar motion by defendants would have been sustained. The defendants were quick to heed this advice and promptly filed their own motion for judgment on the pleadings. Plaintiffs appeal from the order sustaining that motion.

From the start this case has been in a state of confusion procedurally. The motion before us was filed pursuant to rule 222, R.Civ.P., the text of which is as follows:

Any party may, at any time, on motion, have any judgment to which he is entitled under the uncontroverted facts stated in all pleadings, or on any portion of his claim or defense which is not controverted, leaving the action to proceed as to any other matter of which such judgment does not dispose.

As the very name suggests, judgment on the pleadings, is appropriate only when the pleadings, taken alone, entitle a party to judgment. Evans v. Herbranson, 241 Iowa 268, 278-80, 41 N.W.2d 113, 117-18 (1950); State of Iowa ex rel. Freeman v. Carvey, 175 Iowa 344, 347-48, 154 N.W. 931, 933 (1916); A. Vestal and P. Willson, 1 Iowa Practice § 19.01 (1974).

Matters outside the pleadings should not be considered. Cf. Gigilos v. Stavropoulos, 204 N.W.2d 619, 622 (Iowa 1973) (if matters outside the pleadings are to be considered, motion should be made under rule 237, R.Civ.P. for summary judgment.) See 2A Moore's Federal Practice at 2201 et seq. (1979), discussing rule 12(c) F.R.Civ.P. The federal rule makes specific provision for this contingency, ours does not.

In the present appeal the parties presented, and the trial court apparently considered, evidence in the form of depositions as well as an earlier stipulation between the parties concerning repairs to be made. In City of Creston v. Center Milk Products Co., 243 Iowa 611, 616, 51 N.W.2d 463, 465 (1952), faced with a similar situation, we said rule 222 does not contemplate the introduction of evidence but held violation of the rule was not reversible error under the circumstances of that case. We again point out the proper function of a motion under rule 222 is simply to test the sufficiency of the pleadings to present an appropriate issue for trial.

Nevertheless, as in City of Creston, we consider this appeal as presented by the parties and hold defendants were not entitled to judgment on the pleadings. We add gratuitously the result would be the same if we treated the motion as one for summary judgment under rule 237, R.Civ.P., because we conclude there are issues which cannot be resolved except by trial on the merits.

II. One of the vital issues raised is plaintiffs' right to maintain this mandamus action under section 661.9, The Code, which we set out:

The plaintiff in such action shall state his claim, and shall also state facts sufficient to constitute a cause for such claim, and shall also set forth that the plaintiff, if a private individual, is personally interested therein, and that he sustains and may sustain damage by the nonperformance of such duty, and that performance thereof has been demanded by him, and refused or neglected, and shall pray an order of mandamus commanding the defendant to fulfill such duty.

Defendants' argument is two-pronged. They allege plaintiffs have no standing as private citizens to compel the board to exercise purely discretionary powers; and they assert plaintiffs have shown no right to damages even if the standing issue is resolved in their favor. On the first point defendants rely heavily on Williamson v. Kelley, 271 N.W.2d at 730; for the second they cite Gabus Ford v. Highway Comm'n, 224 N.W.2d 639, 644 (Iowa 1974) and Hawbaker v. Highway Comm'n, 253 Iowa 573, 576-77, 113 N.W.2d 296, 298 (1962). We decide against defendants on both points.

Our opinion in Williamson v. Kelley was careful to reserve this very point for decision later. There we held only that practicing lawyers could not challenge a court order fixing the place where trials would be held. As recognized there, the duty of supervisors to provide and maintain safe and adequate court facilities is an entirely different matter.

Mandamus is a summary and extraordinary writ which should issue only in the exercise of sound judicial discretion, taking into account the interests of the public and of third persons, the nature and extent of the wrong or injury which would follow upon refusal of the writ, and the promotion of substantial justice. Headid v. Rodman, 179 N.W.2d 767, 770 (Iowa 1970) and citations.

The mandamus rule requiring one to plead and prove a right to damages does not apply to private persons who seek to enforce rights in which the public has a vital interest. In such circumstances, we have permitted the writ to issue without such a showing.

Cases which have allowed mandamus without a showing of pecuniary damages include Iowa Mutual Tornado Insurance Association v. Timmons, 252 Iowa 163, 176, 105 N.W.2d 209, 216 (1960), where we said:

The trial court rejected defendants' contention that plaintiff was not a proper party to bring this action, and defendants argue this issue in support of the correctness of the dismissal. The law on this view is not in doubt in Iowa. Plaintiff sued as a citizen, property owner and taxpayer, and pointed out in its petition that revenues from the premium tax involved go into the State general fund, which if insufficient to meet obligations of the State, must be supplemented by State levies upon property owners in the State. It also pointed out that if defendants prevail it will be prejudiced, and that the scheme used by the Farmers Mutual to avoid the two per cent premium tax, if permitted, will result in unfair discrimination in favor of it over plaintiff.

We in Iowa have never accepted the view expressed in several jurisdictions that...