Town of Waukon v. Strouse

38 N.W. 408, 74 Iowa 547, 1888 Iowa Sup. LEXIS 57

Opinion

Roturo ok, J.

„ 1. Pleading: riea afterof prHÍofl’: I. The motion to strike was well taken. The grounds of recovery in the first count of the amended petition were substantially the . x . . ,.,. J same as m ‘'a-e original petition. 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.

2 assignment ' of errors: ruidemurrer: pxííciiipss

II. The demurrer contained several distinct points or grounds upon which it alleged that the petition was assa^ab^e- These points were (1) that the court had no jurisdiction of the action, for the reason that such jurisdiction was exclu- " sive in the mayor of the town ; (2) that there was no authority in the mayor of the town to fix the amount of defendant’s liability for a refusal to take out a license as a transient merchant; (3) that the ordinance upon which the action is founded is unconstitutional and void. There were other grounds of demurrer stated; which we need not set out here. The assignments of error are in these words : “ (1) The court erred in sustaining defendant’s demurrer to the original petition in said cause; (2) the court erred in sustaining defendant’s motion to strike out the first count of plaintiff’s amended and substituted petition ; (3) the court erred in sustaining defendant’s demurrer to the second count of plaintiff’s amended and substituted petition; (4) the court erred in rendering j udgment in favor of defendant and against plaintiff in this action.” The defendant insists that the assignments of error are not sufficiently specific. We think his position must be sustained. It will be observed that there are at least three points in the demurrer. They are not merely repetitions of the same point, but they raise distinct questions. In such case, we are precluded from looking into and determining assignments of error in this general form. Code, sec. 3207 ; Oschner v. Schunk, 46 Iowa, 293 ; Bradley v. Johnson, 67 Iowa, 614 ; and many other cases. Where the assignments of error are not sufficiently specific, counsel for appellee have the right to stand_ upon that defect; and we have no authority to disregard it.

AffFIBMED.