State v. Simkins

• Decision Date: 24 May 1889
• Citation: 77 Iowa 676,42 N.W. 516
• Parties: STATE v. SIMKINS ET AL.
• Court: Iowa Supreme Court

77 Iowa 676

42 N.W. 516

STATE

v.SIMKINS ET AL.

Supreme Court of Iowa.

May 24, 1889.

Appeal from district court, Marshall county; S. M. WEAVER, Judge.

This is an action in the nature of a quo warranto, by which the right of the defendants to hold the office of directors of the independent school-district of Le Grand, in Marshall county, is called in question. An injunction was issued, and served upon the defendants, by which they were temporarily restrained from performing the functions of the office. The defendants filed an answer and a motion to dissolve the injunction. The plaintiff demurred to the answer. The demurrer was overruled, and the motion to dissolve the injunction was sustained. These orders and rulings were made in April, 1888. Afterwards, and on the 15th day of August, 1888, the plaintiff filed an amended and substituted petition. A demurrer to this petition was sustained, and judgment was rendered against plaintiff for costs, and the state appeals.W. W. Miller, Co. Atty., and Henderson & Hargrave, for appellant.

Parker & Nichols, for appellees.

ROTHROCK, J.

1. The plaintiff assigns error upon the ruling of the court upon the demurrer to the answer, and the order dissolving the injunction, and counsel have discussed these questions to some extent. We do not think it proper to consider these rulings. They were superseded by the amended and substituted petition. It is only necessary to say that the injunction was improvidently issued. The action was commenced by the county attorney in the name of the state, and there was no ground for an injunction, there being no proper parties to execute an injunction bond. It is true that the names of certain persons were incorporated in the original petition or information as relators, but by consent of the parties their names were stricken out of the petition.

2. The only question properly presented upon this appeal is whether the court erred in sustaining the demurrer to the amended and substituted petition; and here we may say that all that part of the demurrer which attacks the petition upon facts set forth in the original petition must be ignored. The original petition was as foreign to any proper investigation of the legal sufficiency of the substituted petition as if the plaintiff had dismissed the original petition, and commenced a new action. Where a substituted pleading is filed in an action, the original may possibly be used as evidence against the party by reason of contradictory statements or the like, but, on a demurrer to the substituted pleading, the two pleadings cannot be considered.

With these remarks as preliminary, we come to a determination of the question whether the substituted petition sets forth a cause of action. The material facts set forth in the petition are as follows: The independent school-district of Le Grand is composed of certain territory in Marshall county, excepting a small part of the district, which is in Tama county. It was originally organized as a district having less than 500 inhabitants. Six persons were acting as directors of the district in March, 1887, and the terms of two of said directors expired in March, 1888. Prior to March, 1888, the question was raised as to whether there were 500 inhabitants in the district. At the election in March, 1888, part of the...