Roberts v. Hamilton

• Decision Date: 20 October 1881
• Citation: 10 N.W. 236,56 Iowa 683
• Parties: ROBERTS v. HAMILTON
• Court: Iowa Supreme Court

10 N.W. 236

56 Iowa 683

ROBERTS v. HAMILTON

Supreme Court of Iowa, Des Moines

October 20, 1881

Appeal from Decatur District Court.

ACTION AT LAW. A demurrer to defendant's answer was overruled and, plaintiff standing on his demurrer, judgment was rendered for defendant. Plaintiff appeals.

REVERSED.

Bullock & Hoffman, for appellant.

Harvey & Young, for appellee.

OPINION

BECK J.

I. The petition alleges as a cause of action that defendant sold to one Priest certain fences, agreeing to warrant the title thereto and to pay Priest all costs and damages which he might sustain by removing them. Under this sale and agreement Priest took the fences and converted them to his own use. Thereupon plaintiff brought an action against Priest for the value of the fences and recovered judgment therefor and for costs. Pending this action Hamilton was made a defendant therein and judgment rendered against him as well as Priest for the damages and costs accruing after defendant was made a party to the action, but judgment was rendered against Priest alone for costs accruing before that time, amounting to $ 279. The petition shows that Priest authorized plaintiff to pay the costs and assigned to plaintiff his cause of action against the defendant for the cost, which plaintiff has paid. Other averments of the petition need not be recited. In this petition defendant answered, setting up the following defenses:

"1st. That the cause of action was fully adjudicated in a suit brought by plaintiff in the Circuit Court against defendant.

"2d. That the cause of action was also fully adjudicated in an action wherein the judgment was rendered, which divided the costs, adjudging a part to be paid by Priest and defendant and the balance, $ 279, to be paid by Priest alone."

Demurrers to the answers were overruled.

II. The answers of the defendant show the facts upon which these pleas of former adjudication are based to be as follows: The suit in the Circuit Court as disclosed by the petition was based upon the identical cause of action set up in the petition in this case. The defendant demurred to the petition in that action on the ground that, as plaintiff claims to recover for costs in an action pending in the District Court, the Circuit Court has no jurisdiction; the plaintiff's only remedy, if he has any, is by motion in the District Court to retax the costs. This demurrer was sustained.

It is very plain that the adjudication upon the demurrer did not go to the merits of the case. The sole question decided pertained to the jurisdiction of the court and not to plaintiff's right to recover upon his petition. The demurrer did not challenge plaintiff's right to recover in the proper forum; it simply put in issue his right to recover in the Circuit Court. What is said in the demurrer in regard to the remedy...