Westphal, Hinds & Co. v. Henney

49 Iowa 542

Opinion

Rothrock, Ch. J.

i. parties: partnership: husband and wife. I. That there was a defect of parties defendant is too, plain for argument or discussion. How the interest of the defendants in the partnership could be judicially ascertained, without the presence of all the members of the firm, is beyond our comprehension.

s. pleading: denuuTer. II. Although the overruling of the demurrer was erroneous, yet the defendants, by answering over to the merits of ^61 petition, have waived their right to appeal from the ruling upon the demurrer. This has been so often determined by this court that a citation of the cases is unnecessary. See Dillon Dig., 650; Hammond’s Dig., 362.

Counsel for appellants insist that, as this was a demurrer for a defect of parties, and the answer was to the merits, and did not raise the question presented by the demurrer, the demurrer should not be deemed waived by answering.

They cite Fisher v. Scholte, 30 Iowa, 221, in support of this view. We clo not understand the rule of that ease to be an exception to the general rule announced so often without exception or qualification, that answering over waives che ruling upon a demurrer.

We must not be understood, however, as holding that a decree founded upon these pleadings would have any binding force as against Jacob and Peter Klauer, or that any settlement of the partnership can be made, or the interest of an individual partner be determined, without the presence in court of all the partners.

Aeeirmed.