Jordan v. Kavanagh

• Decision Date: 08 April 1884
• Citation: 63 Iowa 152,18 N.W. 851
• Parties: JORDAN v. KAVANAGH, JR., AND OTHERS.
• Court: Iowa Supreme Court

63 Iowa 152

18 N.W. 851

JORDAN

v.KAVANAGH, JR., AND OTHERS.

Supreme Court of Iowa.

Filed April 8, 1884.

The defendant Marcus Kavanagh, Jr., entered into a contract in writing with the Narrow Gauge Railway Construction Company for the construction of a section of railroad between the Des Moines river and Boone, Boone county, Iowa. He agreed to construct and finish the work in a substantial and workmanlike manner, and to finish the same by October 1, 1881. He also agreed to pay all just claims against him, or against any subcontractor under him, for services or labor performed or material furnished in the work under the contract, and to pay all bills for board of men and trains engaged upon said work. He also gave to said construction company a bond in the sum of $10,000, with the other defendants as sureties, conditioned that he would “well and truly comply with said contract in the time and manner herein provided.” Plaintiff brought this action on the bond and contract to recover for certain items of labor performed by various parties on said work under a subcontractor, and for board for men who were engaged in the work, alleging that said accounts have been assigned to him. The defendants filed a motion to transfer the cause to Polk county, alleging that they were all residents of that county. This motion being overruled, they filed a demurrer to the petition, which was overruled. They then filed an answer controverting the allegations of the petition, but before the case was reached for trial they withdrew this answer from the files and judgment was entered for plaintiff. Defendants appeal.Baylies & Baylies, for appellants.

Crooks & Jordan, for appellee.

REED, J.

Section 2583, McClain's Code, provides that an action may be brought on a contract relating to the construction of a railway, or for labor performed thereunder, in any county where the contract was made or performed in whole or in part, or where the work was performed. When the motion to transfer the case to Polk county was submitted and disposed of, the pleadings contained no allegation that the contract had been performed or the work done in Boone county, but plaintiff was allowed to establish these facts by affidavit, on the hearing of the motion. These facts were not material to plaintiff's right to recover. They relate only to his right to prosecute his suit in that county. He is required to set out in his petition only the facts which constitute his cause of action. Code, § 2646. If he had alleged them in his petition, defendants would certainly not have been concluded by the allegation, but on the hearing of their motion they would have been entitled to show by evidence that the suit was brought in the wrong county. It was not error, then, for the court to determine the question on the evidence on which the motion was submitted.

It is contended by appellants, however, that while it may be true that the suit as against Kavanagh may have been properly brought in Boone county, as to the sureties on the bond the motion to transfer should have been sustained. The ground of this claim, as we understand it, is that by the terms of the bond the sureties are not liable for claims of the character of that sued on; that, while Kavanagh may be liable for the claim under the original contract with the construction company, by the terms of the bond the sureties are liable only for damages resulting from his failure to complete the work within the time or in the manner provided in the contract. But this question relates to the right of plaintiff to recover at all as against the sureties, and it could not be determined on this motion. The only question raised by the motion was whether defendants were entitled to have the question whether they were liable on the claim which plaintiff was asserting against them tried in another county.

2. Appellee contends that the ruling on the demurrer to the petition cannot be reviewed herein. (1) No exception was taken to the judgment; and (2) defendants waived the demurrer by answering over. Neither of these positions is correct. Defendants excepted to the overruling of the demurrer, and these exceptions were made matter of record. This preserved the questions raised by the demurrer, and it was not necessary to except again when the final judgment was entered. When a party has once properly made his exception to an adverse ruling he does not waive it by failing to except to some other decision which involves the same question. The rule is that a party waives the demurrer by pleading over...