
    W. H. Gregory, Appellant, v. A. P. Woodworth.
    Demurrer: adjudication. Code, 1873, section 2654, provides that on the decision of a demurrer, if the unsuccessful party fails to amend or plead over, the same consequences shall ensue as though a verdict had passed against plaintiff, or defendant had made default. Held, that where plaintiff failed to amend his petition, to which a demurrer had been sustained but appealed to the supreme court where the judgment was affirmed, such judgment constitutes a final adjudication which bars another action for the same cause.
    
      Appeal from Floyd District Court. — IIon. J. P. Olyde, Judge.
    Wednesday, January 18, 1899.
    Defendant's demurrer to plaintiff’s petition and amendments was sustained, and, plaintiff electing to stand on his petition and amendments, judgment was rendered against him, from which he appeals.
    
    Affirmed.
    
      P. W. Burr and J. 8. Boot for appellant.
    
      Bilis & Bilis for appellee.
   Given, J.

I. This is the second appeal in this case, See 93 Iowa, 246. The action is to recover for personal injuries sustained by plaintiff on the fourth day of June, 1892, caused, 'as is alleged, by defendant’s dog. On his first petition the plaintiff alleged as shown in the opinion filed January 17,1895, on the former appeal. After the filing of said opinion, the plaintiff, on the tenth day of July, 1895, filed this petition, and thereafter two amendments thereto, in the district court. This petition states the cause of action substantially as in the first, with the additional allegations that plaintiff was free from blame or negligence contributing to his said injuries, and that he was free from any negligence in prosecuting his suit on his first'petition. In the first amendment he alleges that the injuries complained of were caused solely by the acts of defendant’s dog; that he relied upon his attorney in drawing his first petition; that the failure to allege the freedom from fault on plaintiff’s part was not done unthinkingly or negligently, but after due consideration, and in the belief that the statute imposed an absolute liability, except when the party injured was doing an unlawful act. A copy of the demurrer to the first petition is set out, the grounds for which are that the petition does not show that the injury was done by defendant’s dog, nor that the plaintiff was without fault or negligence, nor that other causes than the acts of the dog did not contribute to the injury; also, that it does not show that the dog was at the time, worrying, maiming, or killing any domestic animal, attacking any person, or that the dog was vicious, or that defendant had any knowledge or reason to expect that the dog would do as alleged. In his second amendment the plaintiff alleges that said demurrer to the first petition was sustained by the district court on all grounds, that plaintiff elected to stand on his petition/ and that this court affirmed on the ground that it was not alleged that plaintiff was without fault or negligence contributing to this injury, and that he relied upon the opinion and judgment of his attorney as to the sufficiency of said petition. Plaintiff avers that, by reason of the facts in this petition and amendment alleged, “he has been without fault or negligence in the prosecution of this action.” Following this, the opinion rendered on the former appeal is set out at length. The grounds of demurrer to this petition and amendments may be summed up as follows: That the petition shows the cause of action-is barred, and that this is not a continuation of the first action, plaintiff having failed therein by reason of his own negligence; that the petition shows an adjudication on the cause of action; that the petition does not show that the injury was done by defendant’s dog, or that the dog was in the act of worrying, maiming, or killing any domestic animal, or attempting to bite any person, or that the dog was vicious, or known to defendant to be vicious. This demurrer was sustained generally by the district court on the fifteenth day of Play, 189 Y; and, plaintiff electing to stand on his petition, judgment was rendered against him as provided in section 2654, Code 18Y3. -

II. In presenting his first petition the plaintiff said, in effect, “Here is my cause of action, and it is upon these allegations, and these alone, that I claim the right to recover.” Py his demurrer to that petition the defendant said, in effect, that “Admitting all these allegations to,be true, they do not entitle the plaintiff to recover.” The court, assuming, for the purposes of the demurrer, that the allegations of the peti- ■ tion were true, held that they did not entitle the plaintiff to recover, or, in other words, did not show a cause of action. The truth of the -allegations being thus admitted, the case stood upon its merits, the same as if, on a trial, each allegation had been proven, and the ruling on the demurrer was an adjudication on the merits of the case. Plaintiff might then have amended his petition, and presented additional allegations, but this he declined to do, and stood upon his petition; and judgment was rendered against him under said section 2654 of the Code of 18Y3, which provides as follows: “Upon a decision of demurrer if the unsuccessful party fails to amend or plead over, the same consequences shall ensue as though a verdict had passed against the plaintiff, or the defendant had made default, as the case may be.” This judgment was affirmed on appeal to this court, and it is the opinion of the majority that the petition shows a final adjudication, and for that reason the demurrer to this petition was properly sustained. — Affirmed.

Given, J.

(dissenting).-

I do not concur in the conclusion of the majority. Surely there is no final adjudication against a party, so long as he has a right to be further heard in his case. I am of the opinion that plaintiff’s present petition shows that he has the right to be further heard. Section 2537 of the Code of 1873 is as follows: “If, after the commencement of an action, the plaintiff fail therein for any cause, except negligence in its prosecution, and a new suit be brought within six months thereafter, the second suit shall, for the purposes herein contemplated, be deemed a continuation of the first.” There is no question but that the wrongs and injuries alleged in this petition are the same as those alleged in the first, and that plaintiff failed on the first because he omitted to allege therein that he was free from contributory negligence. I do not t-hinlc this was negligence in the prosecution of the action on that petition. Plaintiff had a right to rely upon the judgment of his attorney as to what should be alleged, and in the management of the case throughout, as it is alleged he did. Therefore, he- was not negligent in the prosecution of his action. Plaintiff’s attorney, believing, as is alleged, that the law did not require an allegation of care on plaintiff’s part, was not negligent in omitting such an allegation. It was his duty not to commit his client to the proof of such an. allegation, if he believed it was not required. It was, to say the least, a debatable question ; and plaintiff’s counsel had the right to have the decision of the lower court thereon reviewed by this court, and this he could only accomplish by standing on the petition. Plaintiff was not bound to accept the decision of the lower court as conclusive, and io amend or go out of court. He bad a right to bave tbe decision reviewed in tbis court. . Surely it cannot be said, under tbe allegations of tbis petition, tbat plaintiff failed on bis first petition because of negligence in its prosecution. He failed because tbe courts took a different view of a debatable question of law from tbat of bis counsel. I am clearly of tbe opinion tbat tbis petition shows tbe present to be a continuation of tbe former action, and, therefore, not barred. Plaintiff bad a right to appeal from tbe ruling on tbe demurrer to tbe first petition, and be did so. Therefore, tbe judgment of tbe district court did not become a final adjudication, because tbe plaintiff bad a right to be further beard. Tbe affirmance of tbat judgment did not become a final adjudication, for tbe reason tbat, under tbe facts alleged in this petition, plaintiff has a right to prosecute tbis action thereon as a continuation of tbe first. If it be true, as I think it is, tbat plaintiff did not fail on his first petition because of negligence in its prosecution, it is certainly true tbat tbis is a continuation of the former action, and, therefore, it is not barred by lapse of time, or prior final adjudication. I think we should reverse.  