Nieukirk v. Nieukirk

• Decision Date: 28 January 1892
• Citation: 84 Iowa 367,51 N.W. 10
• Parties: NIEUKIRK v. NIEUKIRK.
• Court: Iowa Supreme Court

84 Iowa 367

51 N.W. 10

NIEUKIRK

v.NIEUKIRK.

Supreme Court of Iowa.

Jan. 28, 1892.

Appeal from district court, Washington county; J. K. JOHNSON, Judge.

This is an action for a decree foreclosing a lien upon certain real estate, and ordering a sale to pay the amount found to be due. The defendant resisted the claim made in a substituted petition by a motion to strike the same from the files, and by a demurrer, both of which were overruled, and a decree entered for the plaintiff.Warren Harmon and Pickel & Crocker, for appellant.

Dewey & Eicher, for appellee.

ROTHROCK, J.

The plaintiff and defendant were formerly husband and wife. It appears from the record that on the 17th day of September, 1889, the plaintiff filed a petition in the court below, in which he sought to obtain a decree setting aside and annulling a decree of divorce between the parties, which was before that entered in the district court of Linn county, at the suit of the defendant. The claim made in the petition to set aside the decree was that it was procured by fraud. On the 25th day of December, 1889, the plaintiff withdrew his petition, and “dismissed all claims and actions therein prayed for,” and asked to be heard on a substituted petition, which he then filed. The record does not show that there was any appearance to the original petition by the defendant, and it is conceded that the district court of Washington county had no jurisdiction to enter a decree canceling and setting aside the decree of divorce entered by the district court of Linn county. Afterwards the defendant filed a motion to strike the substituted petition from the files, upon the ground, among others, that it was not an amendment, but is an entirely different cause of action than that set up in the original petition. This motion was overruled, and the defendant excepted to the ruling. On the 25th day of February, 1890, the defendant filed a demurrer to the substituted petition. It was claimed in the demurrer that the substituted petition was an entirely new cause of action. In addition to this ground, the defendant, by the demurrer, attacked the merits of the substituted petition, and claimed that it did not present a cause of action. It is now strenuously contended in behalf of the defendant that the court erred in overruling the motion to strike the substituted petition. We do not think that defendant is in a position to present that question. She did not stand on her motion, but filed her demurrer, attacking the petition on its merits. The fact that the ground of the motion was repeated in the demurrer does not aid the defendant. A party has no right to demand repeated decisions of the court on the same question, presented first by motion and afterwards by demurrer. If the substituted petition was vulnerable to the objection, it was properly made by the motion; and when the ruling was made on that, it was an end of the question in that court. When the defendant afterwards attacked the petition on its merits, it was an appearance to the merits, and waived the ruling on the motion; and in thus holding it is proper to repeat that the record does not show that the defendant made any appearance until the motion to strike the substituted petition was filed.

2. We come now to the questions raised by the demurrer, involving the sufficiency of the substituted petition. The cause of action is founded upon a written instrument, of which the following is a copy: “Know all, that I, Rebecca Nieukirk, of the county of Linn, state of Iowa, do acknowledge myself indebted to Isaiah Nieukirk in the sum of two hundred dollars, and for the purpose of securing the payment of the same I hereby convey to said Isaiah Nieukirk lots five and six, and south half of...