Theis v. Chi. & N. W. Ry. Co.
| Citation | 78 N.W. 199,107 Iowa 522 |
| Court | United States State Supreme Court of Iowa |
| Decision Date | 03 February 1899 |
| Parties | THEIS v. CHICAGO & N. W. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from district court, Sac county; Z. A. Church, Judge.
At the November term, 1895, of the Sac district court, plaintiff filed his petition in this case, claiming damages for personal injuries caused by the negligence of defendant company. Defendant answered, putting in issue the charges made, and to the answer a reply was interposed. The cause being thus at issue at the spring term, 1896, an order was then made assigning it for trial as the first jury case at the August term following of said court. On August 13, 1896, plaintiff filed what he called an “amended and substituted petition.” This was precisely the same as the original petition, save that attached to it were 39 interrogatories for defendant to answer. On August 29th, defendant moved to strike the substituted petition and interrogatories, on the ground that the petition was the same as the one already answered, and that defendant was prepared to go to trial on the issues as made. This motion was overruled. Thereafter defendant answered the substituted petition, and filed exceptions to the interrogatories. Among these exceptions, it was urged that the interrogatories were not attached to the original petition, and were not filed until after the cause was at issue. There was a motion by plaintiff to strike these exceptions. The motion was overruled, and the exceptions sustained. Plaintiff then applied for a continuance of the cause, alleging that he would appeal from the trial court's ruling on the exceptions to the interrogatories, and asking that further proceedings in the cause be suspended until the appeal could be heard. This application was overruled. Thereafter a jury was impaneled for trial of the action. Plaintiff refusing to offer any evidence, the court directed a verdict for defendant. This was returned, and judgment rendered thereon in defendant's favor for costs. Plaintiff appeals. Affirmed.I. S. Struble and C. R. Metcalfe, for appellant.
Hubbard & Dawley, W. A. Helsell, and C. D. Goldsmith, for appellee.
If it be conceded that plaintiff had a right to amend his original petition in August by attaching interrogatories thereto, yet we do not think he had any right to refile that pleading, which is practically what he did, and thus compel defendant to answer it a second time. Defendant's motion to strike this pleading should have been sustained. Substantially this ground, among others, was set up in the exceptions to the interrogatories. If the trial court sustained the exceptions on this ground, and thus, in part, reconsidered its former ruling, the plaintiff has no just...
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