Opinion
No. 41717.
June 20, 1933.
PLEADING: Demurrer — Motion to Dismiss in Lieu of Demurrer. A 1 motion to dismiss a petition for a writ of certiorari will be treated as a demurrer when based on statutory grounds for demurrer.
APPEAL AND ERROR: Decisions Reviewable — Failure to Stand on
Pleading.
Appeal from Woodbury District Court. — H.R. MUNGER and RALPH OLIVER, Judges.
Application for a disability pension made by a member of the fire department of Sioux City and presented for consideration to the trustees of that department, as provided by section 6316 of the Code. A physician was appointed by the trustees as provided by statute, and a hearing was had. The advice of the physician supported the claim of disability. But the trustees denied the application in toto and assigned no reason therefor. The applicant thereupon sought to sue out a writ of certiorari. He served a notice upon the trustees to that effect and filed a petition for a writ in the district court, as provided by section 12456.
Without waiting for a writ to issue and therefore without waiting for the return of the lower tribunal to the writ, the defendants assailed the petition for the writ by a motion to strike the same on the following grounds:
"Par. 1. That the said petition fails to state a cause of action.
"Par. 2. That the said petition shows upon its face that the plaintiff is not entitled to the relief demanded.
"Par. 3. That the said petition fails to allege any fraud or collusion, and that under statute section 6322, Code of 1931, the action of the defendants, complained of in said petition, is res adjudicata and final in the absence of fraud."
This motion was sustained by the court and leave given to amend. An amendment was filed by the applicant. A second motion to strike was filed by defendants on virtually the same grounds as were contained in the first motion; the averment being that the amendment was a mere repetition of the original petition. The third ground was identical in both motions. The court sustained the second motion and dismissed the petition. From both rulings the applicant has appealed. — Appeal dismissed.
C.R. Metcalfe, for appellant.
H.C. Harper, A.O. Jepson, and Jesse E. Marshall, for appellees.
The appellant has argued his case here on its alleged merits, whereas the appellees have avoided argument on such question of merit and have confined their argument to a single question of practice. They contend that their motion to dismiss was the equivalent of a demurrer and that the plaintiff did not in the district court elect to stand upon his pleading nor suffer judgment to go against him; but appealed from the ruling without making any election. To this challenge the plaintiff responds with a citation of chapter 235, 44th Gen. Assem.
We have to say that the plaintiff quite misconceives the purport of such citation. It has no controlling effect upon the question raised by the appellee.
[1] By the provisions of section 12465 the action of certiorari is to be prosecuted by ordinary proceedings. The motion in this case is predicated upon grounds of demurrer, and is therefore to be treated as such.
[2] Under section 12459 it is required that a petition for certiorari "must state facts constituting a case wherein the writ may issue, and be verified." The petition in this case was filed in the district court. The defendants pleaded thereto before the issuance of the writ. As a matter of practice we have held that the petition in such a case is subject to demurrer before the return thereto is made by the lower tribunal. McKinney v. Baker, 100 Iowa 362, 69 N.W. 683. We have also held that an adverse ruling on a motion to dismiss, is appealable upon an election by the adverse party to stand upon his pleading. Cedar Rapids M.C. Railway Co. v. Cummins, 125 Iowa 430, 101 N.W. 176. On the other hand, it has been held that a demurrer will not lie after the issuance of the writ. In such case the proper procedure is to move to quash the writ. Price v. Town of Earlham, 175 Iowa 576, 157 N.W. 238; Tuttle v. Hutchison, 173 Iowa 503, 151 N.W. 845. The defendants' motion to dismiss must therefore be sustained, and it is so ordered. The case will be remanded to the district court with leave to this appellant to make his election there as to whether he will amend his pleading or suffer judgment to be entered thereon. — Appeal dismissed.
KINDIG, C.J., and ALBERT, DONEGAN, CLAUSSEN, and STEVENS, JJ., concur.