Johnson & Co. v. Tostevin & Le Ray , 60 Iowa 46 ( 1882 )

Rothrook, J.

1. JTJBISDIC- • Tiojsr: personal action: non-resiclent defendants: voluntary appearance. I. One ground of demurrer was to the effect that the court had no jurisdiction of the defendantsj nor of the subject matter of the suit, for the reason that the petition shows that the partnership, and members thereof, are residents of "Wisconsin, and that the place of performance of the contract is in and there is no averment of a breach thereof, at Wisconsin, the place of performance. The demurrer was filed in behalf of all of the defendants. This constituted an appearance to the action, and the court thereby acquired jurisdiction of the ¡versons of defendants. Code, § 2626. The objection that there was no breach of the contract shown by the petition, is not correct. It is expressly averred therein, that the defendants refused to ship the mills upon demand being made therefor.

We are at a loss to understand what counsel mean by the objection that the court had no jurisdiction of the subject-matter of the suit. The petition sets forth a contract and a breach thereof on the part of the defendants, and claims damages for the breach. It is a personal action which may be maintained by acquiring jurisdiction of the persons of the dedefendants, no matter where the contract was made, nor where it was to be performed. Non-residents of the State may be sued in a personal action in any county where they may be found. Code, § 2586.

2. pleading : Sact in sot-" settingout copy. emur II. Another cause of demurrer was as follows: “That the said petition claims upon a written contract composed of an 01'der by one W. IT. Keefer to plaintiffs and upon defendants, and' written correspondence by and between plaintiffs and defendants, and that a part ^ saj,j wlqting so sued upon is not incorporated into, nor attached to, plaintiff’s petition, and that no sufficient reason for want thereof is given, to-wit: the answer of the plaintiffs to the letter of defendants, in which plaintiffs claim that they assented to defendant’s terms upon which they offered to accept the order on them.”

3. PRACTICE In supreme court: presumption in favor ot tlie court below. The demurrer was properly sustained if the above ground therefor is correct in its statement of facts. Code, § 2648. There is a dispute as to the record in the case, and we have resorted to the transcript to ascertain, if we can, the state of the pleadings to which the demurrer was interposed and sustained. It appears that the petition was filed on the 31st day of July, 1880. A demurrer to the petition was filed on the 31st day of August, 1880. It is not disputed that this demurrer was sustained at the August term, 1880. The transcript shows otherwise, but the appellants assert in their abstract that the ruling was made in August, and appellees do not deny it. On the 6th day of September, 1880, what is denominated an amended petition, was filed. On the 21st day of February 1881 a demurrer to the amended petition was filed. This demurrer was sustained on the 17th of March, 1881, and on the same day what is denominated as an “amendment to petition and to amended petition,” was filed. This last amendment contained proper averments as to the writings between the parties, and was not vulnerable to the ground of demurrer above set out. The appeal was taken from the ruling sustaining the last named demurrer, and the controversy as to the record is whether the amendment to the amended petition was considered by the court in making the ruling. If it was considered, the demurrer should have been overruled, because there is no other ground of demurrer that has any merit whatever. -If the last amendment was not considered, the ruling of the court was correct.

It is certain that the demurrer was not filed to the last amendment, because it was filed long before said amendment, and the ground of demurrer under consideration was not applicable after the last amendment. There is nothing in the-transcript by which it can be determined with absolute certainty whether or not the last amendment was filed before-the ruling on the demurrer. But the record entry recites, that the hearing was had and the ruling made upon the demurrer to the petition as amended, and no reference is made-therein to an amendment to the amended petition. Now,, we think, it is for the appellants to show by the record that the last amendment was not only on file when the ruling was. made but that it was considered by the court. "Where presumptions are indulged upon questions like this they are-always in favor of the ruling of the court, and upon the ground that error must affirmatively appear. If appellants had taken care to file the last amendment, and made the record show that snch filing was before the submission of the demurrer, or if they had asked the court to make the record show that the last amendment was considered in making the ruling, they would have presented a record here which would have supported the argument that the court considered the last amendment.

Affirmed.