Head v. Hale , 178 Iowa 69 ( 1916 )

Ladd, J.

, „ 1. Pleading : re-stricken6”

2. Replevin : joinaer of-causes: conversion. The petition stated a cause of action in replevin, in strict compliance with the requirements of Section 4163, Code, 1897. After dismissing the same as to Dugan, for that he had been informed that the latter had purchased the property without knowledge of his claim, he filed a reply, alleging, in substance, that the remaining defendant, Hale, had sold the mules to Dugan, who was entitled thereto as against Hale, and to the immediate possession thereof; and that thereby Hale had appropriated them to his own use; and that, at the time of such conversion, they were of the value of $200; wherefore he had been damaged in the sum of $100. Hale moved that this reply be stricken, for that it asserted a separate and distinct cause of action, which could not be set up in the reply nor joined in an action of replevin. This motion, was sustained. That the matter pleaded was not appropriate for a reply cannot well be questioned. The function of a reply is to respond to a counterclaim, or to avoid matter set up in the answer. Sections 3576, 3577, Code, 1897; League v. Ehmke, 120 Iowa 464. Matters which are material only to the ehuse of action asserted in the petition may not be pleaded in the reply, nor is it permissible to plead a distinct cause of action in reply. Marder v. Wright, 70 Iowa 42. And a. reply averring matters of this kind, or the portion of it so doing, should be stricken on motion. Hunt v. Johnston, 105 Iowa 311. There was no e: ror in striking the reply as such. But the court appears to have treated it as . . though an amendment to the petition. If so regarded, the ruling must be approved; for Section 4164 of the Code declares that “there shall be no joinder of any cause of action not of the same kind” (replevin). The reply pleaded conversion and prayed for the recovery of damages suffered in consequence thereof, and manifestly set up a cause of action of different kind. The pleader did not withdraw or undertake to modify' allegations of the petition, but made the averments of the reply in addition thereto. "Whether petition may be so amended as to change the cause of action to one other than that of replevin is not involved oil this appeal, for that was not undertaken. But see Cox Shoe Co. v. Adams, 105 Iowa 402. The inquiry is whether, having sued in replevin, he may add another cause of action, i. e., conversion, notwithstanding the prohibition by the statute of the “joinder of any cause of action not of the same kind.” The district court rightly held that this might not be done, and its ruling is — Affirmed.

Evans, C. J., G-aynor and Salinger, JJ., concur.