#### S. W. Wing, Appellee, v. District Township of Red Oak *et*al., Appellants.

Pleading and Practice: voemer adjudication. Where the issues presented by the allegations of an answer have been previously adjudicated by the ruling of the court upon a demurrer to the plaintiff’s petition, the answer may properly be stricken out on motion.

*Appeal from Qedar District Court.*— Hon. J. H. Pbeston, Judge.

Monday, May 25, 1891.

Action of *mandamus*to compel the issuing of an order for the payment of a judgment. From a judgment in favor of the plaintiff, the defendants appeal.

*Affirmed.*

*Wolf & Hawley,*for appellants.

*Wheeler & Moffiit,*for appellee.'

Robinson, J.

The original petition in this case was filed in April, 1889, and shows facts substantially as follows: The defendants are the district township of Red Oak, in the county of Cedar and state of Iowa, *633and the president, secretary, treasurer and members of the board of directors of said district. On the first day of December, 1879, the plaintiff recovered a judgment against said district upon an order, payable out of its ■contingent fund, for the sum of two hundred and thirty-eight dollars and fifteen cents and costs, which has never been paid. Since that judgment was rendered there has never been any money in the contingent fund of the district available for its payment, and the last estimate for that fund certified to the board of supervisors was less than the maximum allowed by law, and all of it will be necessary to pay the current expenses of the district. The plaintiff has demanded of the defendants the payment of his judgment, but it has been refused, and the electors of said district have neglected 'and refused to direct the levy of a tax for such payment. The plaintiff has, in writing, demanded that the defendants should ■certify a sufficient amount to the board of supervisors, as provided by law, to pay the judgment, but they have refused to do so.’ The plaintiff demands a peremptory ■order of mandamus, commanding said district, by its proper officers, to issue an order for the payment of said judgment and costs, with costs of this action, and to certify to the board of supervisors an estimate for an .amount sufficient for that purpose. The order upon which the judgment was rendered was issued in March, 1878, and the action thereon in which the judgment was rendered was commenced in November, 1879. ' The plaintiff filed a.n amendment to his petition, which showed the following additional facts: In June, 1878, a person named Little commenced an action against the treasurer of the district for the purpose of restraining the payment of the order, and a temporary injunction for that purpose was issued. In September, 1879, the district appeared in that action, and filed an answer asserting the legality of the order, and asking that the injunction be dissolved. In December of that year the .attorney for the district withdrew the answer and ■his appearance. In February, 1880. the district again intervened, joining the plaintiff Little in asserting the *634illegality of tlie order, and demanded that tlie judgment which, had then been rendered thereon be canceled, and that its collection be enjoined. Wing was make a party defendant to the petition of intervention of the district, and in August, 1884, filed an answer thereto. On the-final hearing, which was- not had until the third day of March, 1887, the plaintiff Little and the intervenor, the district township, were found not to be entitled to-any relief, and their petitions were dismissed.-

To the petition as amended the defendant demurred, upon the ground “that said petition shows upon its-face that defendants, Alexander Murray, James Smith and other persons named as defendants, are public officers, and that the said action is brought for the enforcement of an official duty against them as public-officers; and plaintiff’s petition shows upon its face that the remedy sought is barred by the statute of limitations, because it was not brought within three years of the recovery of the plaintiff’s judgment.” This demurrer was overruled, and the defendants thereafter-filed an answer, which denied that it was the duty of' the board of directors to certify to the board of supervisor’s an amount sufficient to pay the judgment, and *>*denied that the defendants had the right and power to-estimate and' return the amount necessary to pay the judgment, but contained no general denial. The last four divisions of the answer are as follows :

> “ *Fifth.*Defendants further aver that plaintiff is not entitled to a peremptory writ of mandamus, or any writ, to compel defendants to estimate or levy funds for the payment of said judgment, as asked L-y plaintiff, for the reason that such relief-is barred by the .statute of limitations, more than three years having elapsed since plaintiff was entitled to proceed, if at all, by such remedy. *Sixth.*In answer to the amendment of the plaintiff filed pending the first demurrer, defendants say that the plaintiff was never enjoined from pro- - ceeding to the collection of said judgment at any time, nor were the defendants affected by or restrained by said inj unction, nor did said injunction in any way prevent-*635tlie plaintiff from taking the remedy he now seeks.. *Seventh.*Defendants further aver that, in the proceedings in which said judgment was obtained, and which are fully set out in the petition, the plaintiff, by his own pleadings and acts, brought about a decision and adjudication of the court to the effect that neither the district township, its board of directors or the plaintiff were bound by the said injunction, and plaintiff is now estopped from alleging or claiming that he or they were either of them so affected or restrained. *Eighth.*Defendants further state that, by the pleadings, proceedings- and records set out in said amendment to his petition plaintiff is estopped from alleging or claiming' that he was affected by said injunction, and in support of all such matters of estoppel defendants refer to the pleadings and records in the said exhibits and causes set out. in plaintiff’s original petition, and the amendment thereto.”

The plaintiff moved to strike from the answer all portions which pleaded the statute of limitations, and all matters passed upon by the court in overruling the demurrer, upon the ground that “such matters and facts have been adjudicated against the defendants on the ruling of the court upon the defendants’ demurrer to the plaintiff’s amended petition herein, which demurrer was overruled by the court, and that such portions of defendants’ answer are but a repetition of matters and facts passed upon in said ruling.” The motion was sustained, and the divisions'of the'answer heretofore set out were stricken from the answer. Of that action, and the subsequent rendition of judgment,, the appellants complain.

I. ■ If the issue tendered by those portion's of the answer stricken out were adjudicated in the ruling on the demurrer, then the ruling on the motion to strike was correct. *Kissinger v. City of Council*Bluffs, 73 Iowa, 171. By failing to stand on their demurrer, and pleading over, the defendants lost the right to object to any error the court may have committed in overruling the-demurrer. The appellants contend, however, that the *636rule of the case cited applies only when the answer pleads the facts which the demurrer admitted, and that when the answer sets out other facts the rule does not apply. That is undoubtedly true, but we do not think those portions of the answer stricken out pleaded facts which are not shown by the petition. The averments of the petition stand admitted, and nothing to avoid their effect is set out. The effect of the fifth division is to deny that the injunction proceedings instituted by Little were effectual to prevent the running of the statute of limitations. But that question was necessarily raised'by the demurrer. The sixth division alleges that the plaintiff was not enjoined from proceeding to collect his judgment, nor from resorting to the remedy he now seeks, and that the defendants were not affected by the injunction proceedings, but the question as to the effect of those proceedings was necessarily raised by the demurrer.

II. The appellant contends that the question of an estoppel was first raised by the seventh and eighth divisions of the answer. It is true it was not raised in terms by the demurrer, but, so far as it was set out in the division named, it was necessarily involved in the decision. The question presented to the court for its determination was whether the facts disclosed by the pleadings showed that as to plaintiff the time during which the injunction was in force was a part of the time limited for the commencement of the action. The court decided the question in the negative, and thus held, in effect, that the plaintiff was entitled to rely upon the injunction as preventing the running of the statute. Whether that decision was correct is a question not presented by this appeal.

We conclude that the ruling of the district court in sustaining the motion to strike was correct. Its judgment is, therefore, affirmed.