Estate of McMurray v. McMurray

Plaintiffs first filed a petition reciting the facts relating to defendant’s appointment as guardian, attainment of their majority, and failure 'and neglect of th© 'guardian to report. To this the defendant filed an answer pleading the statute of limitations. Thereupon plaintiffs filed an amendment to their petition, pleading certain facts by way of avoidance of the statute. Defendant then filed a motion to strike certain parts of this amendment, and this motion was sustained. Thereafter plaintiffs filed what they denominated an “amended petition,” in which they repleaded the exact facts set forth in the original petition, and further pleaded certain facts by way of avoidance of the statute of limitations. Defendant demurred to this amended petition upon the following grounds: (1) That the facts stated in the amended petition do not entitle plaintiffs to the relief demanded; (2) that th© statements and allegations in said amended petition are irrelevant, immaterial, and in no way or manner state any cause of action for any relief against this *650guardian; (3) that the allegations and statements of paragraph 4 of the amended petition are irrelevant, immaterial, and'do not state any facts entitling' the complainants to any relief against this defendant.

1 As this is a special proceeding, the demurrer must specify and number the.grounds of objection to the pleading. A general demurrer is insufficient. Code, section 3562, and cases cited thereunder. Again, a demurrer is not a pruning hook, and cannot be used to trim out immaterial and irrelevant matter. This must be done by motion. Code, section 3618, and cases cited. The statute of limitations is not available unless pleaded as a defense in the answer, or taken advantage of by demurrer. If not pleaded, it will be treated as waived. Robinson v. Allen, 37 Iowa, 27; Welch v. McGrath, 59 Iowa, 519. As the demurrer does not raise the question of the bar of the statute, it will, for the purposes of this appeal, be treated as waived. And, as the first ground of demurrer is general in terms, it cannot be considered. Crouch v. Crouch, 9 Iowa, 178; Singer v. Cavers, 26 Iowa, 178; McLaughlin v. Bascomb, 36 Iowa, 593; Davidson v. Biggs, 61 Iowa, 309. Irrelevant and immaterial matter cannot be expurgated by demurrer. Bolinger v. Henderson, 23 Iowa, 165; Dougless v. Bishop, 27 Iowa, 214. These principles come almost unbidden to' the mind, and it follows that the demurrer was erroneously sustained.

2 Solution of the question as to whether or not the amended petition was a substitution for the original is not essential to a determination of the case, although we are inclined to think it should be so treated. Lauman v. Des Moines County, 29 Iowa, 310. An amended petition may be an essentially different instrument from an amendment to a petition. In this case it clearly appears, that the pleading was intended as a substitute. That the proceedings adopted in this, case were proper, see O’Brien v. Strang, 42 Iowa, 643; McWilliams v. Kalback, 55 Iowa, 110. The judgment of the district court is REVERSED.