Riediger v. Marrland Development Corp., No. 2-58506

CourtUnited States State Supreme Court of Iowa
Writing for the CourtSubmitted to MOORE; LeGRAND
Citation253 N.W.2d 915
PartiesEarl RIEDIGER and Marvel Riediger, Appellants, v. MARRLAND DEVELOPMENT CORPORATION a/k/a Marrland Development Co., Inc., Appellee.
Decision Date25 May 1977
Docket NumberNo. 2-58506

Page 915

253 N.W.2d 915
Earl RIEDIGER and Marvel Riediger, Appellants,
v.
MARRLAND DEVELOPMENT CORPORATION a/k/a Marrland Development Co., Inc., Appellee.
No. 2-58506.
Supreme Court of Iowa.
May 25, 1977.

Page 916

O'Brien & O'Brien, Sioux City, for appellants.

Crary, Huff, Yates & Clem, P. C., Sioux City, for appellee.

Submitted to MOORE, C. J., and LeGRAND, UHLENHOPP, REYNOLDSON and HARRIS, JJ.

LeGRAND, Justice.

This is an appeal from an order sustaining defendant's motion to dismiss plaintiffs' petition. We reverse.

On June 29, 1973, plaintiffs filed a petition asking that defendant be estopped from forfeiting their interest in a certain land contract, alleging the notice of forfeiture falsely stated they were then $6,000 in default under the contract terms. On July 18, 1973, defendant filed its answer, admitting the formal matters set out in the petition and reiterating the contract was in default. Issue was thus joined on the critical question concerning default in payment of $6,000.

On April 22, 1974, a certificate of readiness was filed. The case was thereafter twice continued by court order to avoid dismissal under Rule 215.1, Rules of Civil Procedure.

On April 25, 1975, defendant filed its motion under Rule 104(b), R.C.P., to dismiss plaintiffs' petition. Under our rules such a motion serves the same purpose as a demurrer formerly did. Bales v. Iowa State Highway Comm'n., 249 Iowa 57, 62, 86 N.W.2d 244, 247 (1957).

A motion to dismiss may be sustained only when the petition fails to state a cause of action upon which any relief could be granted. Like a demurrer, it must be filed before answer. In the present case answer had been filed and issue joined almost two years before the motion was filed.

In Newton v. City of Grundy Center, 246 Iowa 916, 920, 70 N.W.2d 162, 164 (1955), we said:

"Such motion (to dismiss) is now almost as unnecessary as the similar obsolete pleading of demurrer * * * Other available proceedings for disposition of matters on their pleadings after answer virtually eliminate the need or use of the motion to dismiss for failure to state a claim. * * * " (Emphasis added.)

In Brown v. Correll, 227 Iowa 659, 660-661, 288 N.W. 907, 908 (1940), a case arising under the old demurrer statute, defendant attempted to demur after he had filed answer without first securing permission to withdraw his answer. We said this was improper. But see Harrison v. Allied Mutual Casualty Company, 253 Iowa 728, 730, 113 N.W.2d...

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12 practice notes
  • State ex rel. Krupke v. Witkowski, No. 2-59212
    • United States
    • United States State Supreme Court of Iowa
    • July 29, 1977
    ...this defense by motion to dismiss must be based solely on matters alleged in the petition. Riediger v. Marrland Development Corp., Iowa, 253 N.W.2d 915, 916; Ke-Wash Company v. Stauffer Chemical Company, Iowa, 177 N.W.2d 5, II. In her first assignment of error appellant urges us to reconsid......
  • Woods v. Schmitt, No. 87-549
    • United States
    • United States State Supreme Court of Iowa
    • April 19, 1989
    ...solely on matters alleged in the petition, except those facts of which judicial notice may be taken. Reidiger v. Marrland Dev. Corp., 253 N.W.2d 915, 916 (Iowa 1977); see Berger v. General United Group, Inc., 268 N.W.2d 630, 634 (Iowa 1978). A motion to dismiss admits the well-pleaded facts......
  • Berger v. General United Group, Inc., No. 60567
    • United States
    • United States State Supreme Court of Iowa
    • June 28, 1978
    ...(except those of which judicial notice may be taken) nor be aided by an evidentiary hearing. Riediger v. Marrland Development Corp., 253 N.W.2d 915, 916 (Iowa 1977); Ke-Wash Company v. Stauffer Chemical Company, 177 N.W.2d 5, 9 (Iowa 1970); see Kester v. Travelers Indemnity Co. of Hartford,......
  • Johnston v. Percy Const., Inc., No. 2-58752
    • United States
    • United States State Supreme Court of Iowa
    • October 19, 1977
    ...to state a claim on which any relief can be granted must be "filed before answer". Riediger v. Marrland Development Corp., 253 N.W.2d 915, 916 (Iowa 1977). Other procedural devices are available for disposition of matters after answer but were not employed here. Payne's August 197......
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12 cases
  • State ex rel. Krupke v. Witkowski, No. 2-59212
    • United States
    • United States State Supreme Court of Iowa
    • July 29, 1977
    ...this defense by motion to dismiss must be based solely on matters alleged in the petition. Riediger v. Marrland Development Corp., Iowa, 253 N.W.2d 915, 916; Ke-Wash Company v. Stauffer Chemical Company, Iowa, 177 N.W.2d 5, II. In her first assignment of error appellant urges us to reconsid......
  • Woods v. Schmitt, No. 87-549
    • United States
    • United States State Supreme Court of Iowa
    • April 19, 1989
    ...solely on matters alleged in the petition, except those facts of which judicial notice may be taken. Reidiger v. Marrland Dev. Corp., 253 N.W.2d 915, 916 (Iowa 1977); see Berger v. General United Group, Inc., 268 N.W.2d 630, 634 (Iowa 1978). A motion to dismiss admits the well-pleaded facts......
  • Berger v. General United Group, Inc., No. 60567
    • United States
    • United States State Supreme Court of Iowa
    • June 28, 1978
    ...(except those of which judicial notice may be taken) nor be aided by an evidentiary hearing. Riediger v. Marrland Development Corp., 253 N.W.2d 915, 916 (Iowa 1977); Ke-Wash Company v. Stauffer Chemical Company, 177 N.W.2d 5, 9 (Iowa 1970); see Kester v. Travelers Indemnity Co. of Hartford,......
  • Johnston v. Percy Const., Inc., No. 2-58752
    • United States
    • United States State Supreme Court of Iowa
    • October 19, 1977
    ...to state a claim on which any relief can be granted must be "filed before answer". Riediger v. Marrland Development Corp., 253 N.W.2d 915, 916 (Iowa 1977). Other procedural devices are available for disposition of matters after answer but were not employed here. Payne's August 197......
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