Opinion
No. 45964.
August 11, 1942. Rehearing Denied November 20, 1942.
PLEADING: Demurrer and subsequent motion to strike. After a demurrer to a petition has been overruled the defendant cannot attack the same pleading by a motion, but he must elect to plead over on the merits or stand on the ruling on the demurrer and appeal. Section 11109, C., '39, applied.
Appeal from Mahaska District Court. — P.J. SIEGERS, Judge.
Plaintiff filed a petition at law asking damages. Defendant filed a demurrer and a motion to strike. Both were overruled and defendant appeals. — Affirmed.
John D. Randall, of Cedar Rapids, for appellant.
L.R. Carson and Devitt, Eichhorn Devitt, all of Oskaloosa, for appellee.
The nature of the controversy before us is clearly stated in this ruling of the trial court:
"And now, on this 25th day of November, 1941, this cause came on for hearing oil demurrer of the defendant to the plaintiff's petition, and said demurrer is by the court overruled.
"Whereupon, this cause came on for further hearing on the defendant's motion to strike portions of the plaintiff's petition.
"And the court being fully advised in the premises finds that the defendant has heretofore filed a demurrer to the plaintiff's petition, and that the same has been submitted and overruled, and that, having demurred to the plaintiff's petition, the defendant has waived the right to file any motion attacking said petition; that said motion is not filed timely, and that upon filing a demurrer and receiving an unfavorable ruling thereon the defendant could only elect to plead over on the merits or to appeal, and could not attack the same pleading by a motion, having already demurred to said pleading.
"Whereupon, it is ordered that said motion to strike be and the same is hereby overruled."
Section 11109, 1939 Code of Iowa, is as follows:
"Pleadings are the written statements by the parties of their respective claims and defenses and are:
"1. The petition of the plaintiff.
"2. The motion, demurrer or answer of the defendant.
"3. The motion, demurrer or reply of the plaintiff.
"4. The motion, or demurrer of the defendant."
While this statute does not expressly declare in terms that this order of pleading be observed, any other construction, such as was attempted by the pleader in the cause before us, would or could make it impossible to bring a case to an issue.
The ruling of the trial court being in accord with our understanding of correct pleading, it is, therefore, affirmed. — Affirmed.
All JUSTICES concur.