Specht v. Spangenberg

• Decision Date: 21 December 1886
• Citation: 30 N.W. 875,70 Iowa 488
• Parties: SPECHT v. SPANGENBERG.
• Court: Iowa Supreme Court

70 Iowa 488

30 N.W. 875

SPECHT

v.SPANGENBERG.

Supreme Court of Iowa.

December 21, 1886.

Appeal from circuit court, Delaware county.

Action to recover for an alleged breach of marriage. The plaintiff averred that she was a widow, and had children by a former marriage; that the defendant promised to marry her, and the marriage was to take place when two children of the plaintiff should have married; that those children have since married, but the defendant now refuses to marry her. The plaintiff also made an averment in these words: “The plaintiff further, in aggravation of damages, says that the defendant, soon after his promise of marriage, represented to the plaintiff that she, having promised to marry him, was the same as his wife; and, chiding and censuring her for insisting upon postponing the marriage ceremony until the marriage of both her children, as first agreed, demanded of her the privileges of a husband, and that the plaintiff, overcome by the argument and entreaty of the defendant, and desiring to avoid his censure, yielded to him her person, and then, and at other and sundry times during the summer and fall of 1885, in response to defendant's solicitations, granted him the privilege of the marriage bed in sexual intercourse, to the great damage of the plaintiff.” The defendant filed a motion to strike out that part of the petition relating to a seduction in aggravation of damages, because it was irrelevant and immaterial; it not being a proper element of damage, and because it was surplusage and scandalous. The court overruled the motion, and from the order overruling the motion the defendant appeals.Bronson, Carr & Leroy and Blair & Norris, for appellant.

Yoran & Arnold and Powers & Lacy, for appellee.

ADAMS, C. J.

The case presents a question of practice. Where a court refuses to sustain a motion to strike out as irrelevant a part of a petition not designed to show a distinct cause of action, does an appeal lie at once from such rulings? The appellee insists that it does not. An appeal lies from “an intermediate order, involving the merits and materially affecting the final decision.” Code, § 3164. Is the order complained of one of that kind, or is it one which is merely incidental to the trial of the cause? The matter objected to was evidently pleaded merely in aggravation of damages, and not as an independent cause of action. It is expressly stated to be in aggravation of damages, and is not set out in a separate count or division. It did not, then, go to the plaintiff's right of recovery, but merely to the amount of her recovery upon a ground otherwise pleaded. A ruling which merely affects the amount of damages recoverable under a given cause of action is, we think, merely incidental to the trial. This would be clearly so in a case where the ruling was merely upon the admission or exclusion of evidence. If, for instance, the plaintiff had given her deposition to prove the matter alleged in aggravation of damages, and the defendant had moved to strike it out on the ground of the irrelevancy of the averment which it was given to support, and the court had overruled the motion, the defendant would hardly claim an appeal would lie at once from such ruling. The principle involved was virtually decided in Richards v. Burden, 31 Iowa, 306. The court, by Mr. Justice BECK, said: “There are in the progress of a cause an infinite number of questions relating to its conduct, as well as to the law that may arise. These may all, in a degree, affect the rights of the parties, yet are not of such a nature that their decision necessarily determines the final question of the issues of law and fact involved. Questions of practice, and those relating to the admission or exclusion of evidence, are peculiarly within this description. Evidence may be improperly admitted or excluded in the trial of a cause, but it does not follow that the final decision will be adverse to the party against whom the intermediate ruling is made. * * * Were appeals permitted from the orders of the kind complained of, the limit upon their frequency in the same case would only be determined by the number of intermediate questions upon practice and the introduction of evidence which may arise in the progress of a trial.” The court further speaks of the delays which would be...