Pickrell v. Hiatt

46 N.W. 1062, 81 Iowa 537

• Court: Supreme Court of Iowa
• Decided: October 29, 1890
• Status: Published

Opinion

Giveít, J.

1- against estate demu?rer'nt: I. On this appeal, this court will only consider questions involved in the case and certified by the trial judge. Questions not involved in case n°t be considered, though certified, nor will questions involved be considered that are not certified. Code, sec. 3173. The case involves only the questions raised by the demurrer to appellant’s petition or statement of his claim, and are to be determined from the facts of the petition, and not from any statement or finding of facts not alleged therein. The trial judge certifies as facts matter not stated in the petition, such as that deceased was a resident of Iowa, and removed therefrom to Kansas in 1880, and died in Kansas in 1880; that deceased owned real estate in Mahaska county ; and that appellant’s claim was not approved by the clerk. These facts, not appearing in the petition, cannot be considered in passing upon the demurrer. '

The first ground of demurrer is that the facts stated do not entitle appellant to the relief demanded. No objection was made to this ground as being too general, and no question as to its sufficiency is certified. Appellant states his claim to be ''to one-third amount of judgment against J. E. Bailey, William Pickrell, and Anna P. Shaw, and in favor of Leighton & Moore, shown on judgment book, page 210, said appellant having paid one-third of said judgment.” All this may be confessed, and yet no liability exist on the part of the estate. For anything that appears, appellant may have been principal in the judgment, or equally liable with the other parties to it. Clearly, the petition does not state facts that'entitle appellant to the relief demanded.

s. appeal: judge?aprac-tI0e' II. The other ground of demurrer was that the claim showed on its face that it was barred by the statute of limitations. The demurrer was sustained generally ; whether upon the first or second grounds, or both, does not appear. If upon the first, then it was properly sustained, and, if so, the question as to the bar of the statute, was not involved in the case. This court will look beyond the certificate to see if the questions certified are involved in the case. Swails v. Cissna, 61 Iowa, 693; McLenon v. Kansas City, St. J. & C. B. Ry. Co., 69 Iowa, 320; Miller v. Buena Vista Co., 68 Iowa, 711. Looking to the record before us, we think the questions certified were not necessarily involved in the case. Therefore,’*'the appeal should be dismissed.