Spearing v. Chambers , 25 Iowa 99 ( 1868 )

Dillon, Ch. J.

pleading: original petition: effect on cross petition, Whether the plaintiff had dismissed his petition was a controverted fact, and one which it is obvious could not be decided on the demurrer, If the dismissal of the petition of Spearing x . / ° would be good ground for dismissing the cross petition of Chambers against Ingham, the question should, inasmuch as the fact of the dismission of Spearing’s bill was controverted, have been made by motion; the more so, as the record did not show that Spearing’s bill had been dismissed.

But the substantial point ruled by the court below was, that the dismissal of the original petition of Spearing (the court assuming or acting upon the fact of such dismissal) necessarily operated to dismiss the cross petition of Chambers against Ingham, the first count of which related to the same contract which was made the basis of the original petition. In thus holding, the District Court erred.

This exact case is provided for by section 2892 of the Bevision, which is: “ When a defendant has a cause of action, affecting the subject matter of the action, against a co-defendant, or a person not a party to the action, he may mahe as his answer a cross petition against the co-defendant or other person. * * The cross petition shall not delay the original action, when a judgment can be rendered thereon which will not prejudice the rights of the parties to the cross petition.” See also Bev.. § 2880, cl. 5; § 2884. The matters set forth in the first count of the cross petition affected the subject matter of the action, and it is our judgment that it was the right of Chambers to have this portion of the cross petition retained, even if it were true that after such cross petition had been filed, Spearing had dismissed his original petition.

The rights set up by Chambers did not necessarily depend upon the establishment by Spearing of the truth of facts stated in his petition.

In support of these views, see Worrell v. Wade's Heirs, 17 Iowa, 96; King v. Thorp, 21 id. 67; Sharp v. Pike’s Admr., 5 B. Mon. 155; Wickliffe v. Clay, 1 Dana, 585; Bank v. Rose, 1 Rich. Ep. 292; Frost v. Myrick, 1 Barb. 362.

For the error of the court in sustaining the demurrer to, and in dismissing, the cross petition, its judgment is reversed and the cause remanded.

Beversed.