Weimer v. Lueck

• Decision Date: 28 July 1944
• Docket Number: 46465.
• Citation: 15 N.W.2d 291,234 Iowa 1231
• Parties: WEIMER v. LUECK.
• Court: Iowa Supreme Court

15 N.W.2d 291

234 Iowa 1231

WEIMER v. LUECK.

No. 46465.

Supreme Court of Iowa

July 28, 1944

T V. Walker and Floyd E. Page, both of Denison, for appellant.

E A. Norelius, of Denison, for appellee.

BLISS, Justice.

The defendant was the mayor of the city of Denison. On May 23, 1942, an information was presented to him and filed in his office accusing the plaintiff of 'unlawfully and willfully keeping bees which have become a nuisance'. The defendant issued a warrant for plaintiff's arrest charging him with the crime of keeping bees which had become a nuisance, and under it the plaintiff was arrested by the marshal and brought before the mayor. At that time the plaintiff and his attorney informed the mayor that there was no ordinance authorizing the issuance of the warrant or the arrest of plaintiff, and that the arrest was illegal and void. A plea of not guilty was entered. Hearing was continued until May 25th, at which time plaintiff appeared. Those matters were alleged in plaintiff's petition, and also the following That at said hearing the defendant had numerous neighbors and acquaintances of plaintiff to try to interrogate and intimidate him, and defendant 'stated that he knew there was no ordinance under which he could have plaintiff arrested for keeping bees but he had him arrested solely so that neighbors and anybody else could ask him questions and he would be compelled to answer them'; that the information was illegal and void; that the city had no ordinance or regulation prohibiting or affecting the keeping of bees within the limits of the city, or making their keeping a nuisance, which fact was known to the defendant; that plaintiff was discharged from custody and the charge dismissed by defendant because he had no authority or jurisdiction, and there was no ordinance, to try such offense as was charged; that the issuance of the warrant and all acts done by the defendant 'were willful, malicious and without reasonable or probable cause and for the sole purpose of embarrassing and injuring the plaintiff thereby and to intimidate plaintiff to dispose of certain bees which he owned * * *.'

Defendant's demurrer to the petition was based upon three grounds: First, the petition failed to state a cause of action in that it did not allege that defendant was without jurisdiction in the case, and that since he had jurisdiction in cases of ordinances, and to issue warrants for arrest and to hold preliminary hearings, he merely acted in excess of his jurisdiction, and therefore would not be liable to plaintiff; second, the petition failed to state a cause of action in that it did not allege that defendant, as mayor, did not have power to hear complaints, issue warrants and order arrests, and under the law defendant was acting within his jurisdiction; third, the petition showed on its face that defendant was acting as Mayor and by reason thereof was not liable in damages to the plaintiff for any act done.

On February 11, 1943, the court (Judge R. L. McCord) sustained the demurrer. The basis of the holding was that the petition did not state a cause of action. The plaintiff excepted. Plaintiff asked for no additional time to plead, and none was given. On February 17, 1943, plaintiff filed his amended petition, to which defendant filed his motion to strike because it was essentially the same as the original petition, and was but a repetition and a rewriting of the matters alleged therein. The ruling of the court (Judge Bruce M. Snell), on March 26, 1943, upon the motion, was as follows: 'The motion to strike (paragraph 2 of the motion) presents the question as to whether or not the amended petition is sufficiently different from the original petition to escape the effect of the former ruling. In my opinion it is not. The cause of action is essentially the same. The material facts alleged are the same. The wording of the amendment is somewhat different but the substance of the two pleadings is the same. In my opinion the amended petition is still subject to the ruling on the demurrer and is therefore vulnerable to the motion to strike. The motion to strike the amended petition is sustained. The plaintiff excepts.' Plaintiff stood on his amended petition and pleaded no further. In dismissing the amended petition and rendering judgment for defendant against plaintiff for costs, the court said: 'The court now finds that all material allegations of plaintiff's petition have been dismissed and nothing further remains for decision by this court and that judgment should be entered against the plaintiff.'

I. Under the record it is our conclusion that the appellant has presented no question on which he is entitled to a review. His only assignment of error is this: 'The trial court erred in sustaining appellee's motion to strike for the reason that appellant's amended petition stated a cause of action: (1) because the appellee is liable to appellant for damages for false arrest if appellee was actuated by ulterior motives and malice, regardless of the question of jurisdiction, and (2) because appellee is liable to appellant for damages for false arrest, the petition alleging facts showing the appellee, in all the proceedings leading to the arrest of the appellant, was acting wholly without jurisdiction.' These two numbered propositions are the only ones discussed by the appellant in his opening argument. They pertain solely to his right to recover on the merits of his case.

The weakness of this assignment is that it urges a matter which was not raised in the motion to strike and was not passed upon in the ruling thereon.

This appeal, as shown by the record, is not from any error of the court while Judge McCord was presiding, but only from an alleged error when Judge Snell was presiding over the court. The ruling on the demurrer to the original petition is not challenged on this appeal. While he excepted to the ruling, he has not assigned any error thereon. He withdrew his original petition by substituting in its stead his amended petition. Appellee attacked the latter pleading by a motion to strike it from the files, and for default. The motion to strike was based upon the ground that the amended petition was essentially but a repetition of the original petition. This motion invoked a ruling from the court on but one question--the ground alleged therein--was the amended petition essentially the same as the original petition. That was the only question presented to the trial court and that was the only question answered by the court. If the court erred it was in that answer.

The finding and the decision of the court on the motion to strike was that 'the cause of action is essentially the same' and 'the material facts alleged are the same', as in the original petition. That finding and decision are not challenged on this appeal. No error is assigned that the court was wrong therein. As noted above, the only error assigned is that the amended petition stated a cause of action. Whether the amended petition stated a cause of action was a question not submitted to the court and the court neither answered nor attempted to answer it. It would have been error to have done so. The appellee did not demur to the amended petition. He did not invoke a ruling of the court as to whether the petition stated a cause of action or not. His motion to strike the amended petition because it was but a repetition of the original petition was not only correct procedure but it was sound practice. This court has so held from its early days down through the years. See Harvey v. Spaulding, 7 Iowa 423, 424; Mayer v. Woodbury and Strahm, 14 Iowa 57, 59; Robinson v. Erickson, 25 Iowa 85, 86; Phenix Ins. Co. v. Findley, 59 Iowa 591, 594, 13 N.W. 738; Epley v. Ely, 68 Iowa 70, 71-73, 25 N.W. 934, wherein the court said: 'The defendants demurred to the plaintiff's first amended petition, and the demurrer had been sustained. The motion to strike out the second amended petition is based upon the ground that it does not differ in any essential respect from the first amended petition, which the court had held, on demurrer, to be bad. It is not allowable, of course, after a pleading has been held, upon demurrer, to be bad, to file another which does not differ in substance, but in phraseology only. On this point we do not suppose that there is any serious controversy.' Town of Waukon v. Strouse, 74 Iowa 547, 548, 38 N.W. 408, 409, in which the court said: 'Where a party pleads over after a demurrer to his pleading has been sustained, and his amended pleading is the same in substance as the original, the other party is not required to again demur. So far as that count is involved, the question is adjudicated, and the amended pleading presents no question nor case for the court to determine, and it should be stricken from the files.' Van Werden v. Equitable Life Assurance Society, 99 Iowa 621, 623, 68 N.W. 892; Hoyt v. Beach, 104 Iowa 257-259, 73 N.W. 492, 493, 96 Am.St.Rep. 461, where the court through Kinne, C. J., said: 'An examination of the record shows that the last answer differs in no material respect from those to which demurrers were sustained. Some new matter is found in this last answer, but it is simply a conclusion drawn from the same facts pleaded in both answers. Under the established rule of pleading, it is proper to strike an answer which is, in substance, a mere repetition of allegations which have been held insufficient on a demurrer to a former answer in the same case. * * * Any other rule would permit parties to continue indefinitely to file pleadings which were mere repetitions of former pleadings which had been held bad on demurrer. Such a construction would tend to disorder and a disrespect for rulings of the court, would delay judicial...