Dist. Twp. of Eden v. Ind. Dist. of Templeton

72 Iowa 687

• Court: Supreme Court of Iowa
• Decided: October 19, 1887
• Status: Published

Opinion

RothrocK, J.—

i mandamus-specific. I. The demurrer to the petition was in these words: “The defendants demur to the petition herein uPon ^Ie following ground: The facts stated therein do not entitle the plaintiff to the relief demanded.” The action of mandamus is an action at law, and is prosecuted in all respects as an ordinary action. (Code, § 3379.) A demurrer in an action at law must specify the grounds of objection to the pleading attacked by the demurrer. It is not sufficient to' state the objection in the terms of the statute, as is done in this case. (The demurrer not being sufficiently specific, it should hare been disregarded by the court. (Code, § 2649.) The judgment of the district court must be reversed upon this ground.

2. SOHOOX. districts : refusal to act on proposed change of boundaries: mandamus. II. But the plaintiff seems to desire that a ruling should be made by this court as to the sufficiency of the petition, and as both parties have argued the case upon its merits, we have thought it better to determine the question actually involved in the case. It appears from the petition that the territory composing the defendant district formerly belonged to the plaintiff, the district township of Eden. The plaintiff, by its board of directors, made an order that the boundaries of the two districts be changed, and petitioned the board of directors of the defendant to concur in said proposed change of boundary. • The defendant’s board of directors failed, neglected and refused to concur in, or to disapprove of, said proposed change. The prayer of the petition is that the defendant be compelled to take action in the matter. We think that, under the decision in the case of Hightower v. Overhaulser, 65 Iowa, 347, the petitioner alleges facts sufficient to compel the defendants to take action. And, in our opinion, the plaintiff is a proper party to make the demand for such action. The cited case appears to us to be, in principle, the same as the case at bar.

maudamKs: involved. III. It is contended by counsel for the defendant that the cause involves less than $100, and that the appeal will not lie, because no question of law is certified to this court by the trial judge. Section 3173 of the Code, which limits appeals to this court in cases involving $100 or less, has no application to this case. That statute has reference only to cases where the amount in controversy, “ as shown by the pleadings,” does not exceed $100. The petition in this case does not show that the amount in controversy does not exceed $100. It is plain that an appeal will lie in such case without a certificate of the trial judge. Reversed.