Admissions and Issues - Amendments and Supplements. 421. Admission of allegations. The admis- alleged rendered the contract illegal was a sion by a defendant, in his answer, for the pur- question of law. Bell v. Pierson, Mor. 21. pose of obtaining the opening and closing of 429. When the question raised by the pleadthe argument, of the allegations of the plain-ings is, whether new notes and securities were tiff's petition, extends only to the facts pleaded, executed and received in lieu of the note in suit, and not to the sum claimed to be due; such the contents of the new notes and securities are claim is not an allegation, but simply a deduc- not in issue in such sense as to require their tion from the statements of the petition. Hal-production in evidence. Morrison v. Myers & lowell & Coburn v. Fawcett, 30 Iowa, 490. Turner et al., 11 Iowa, 538. 422. Nor will such admission estop the de- 430. Where a mortgage is annexed to the fendant from recovering upon a counter-claim | petition, and it is not denied by the answer, it set up by him, and thereby prevent a recovery is not necessary to prove its execution. Brewby the plaintiff which would otherwise follower's estate et al. v. Crow et al., 4 G. Gr. 520. on the admitted allegations. Ibid. 423. Where the defendant filed an answer, denying the cause of action alleged in the petition, and afterward filed another answer admitting the cause of action, and pleading a set-paid by the holder of the bonds issued by a off, it was held, that the denial in the first answer was waived by the admission in the second. Stadler Bro. & Co. v. Parmlee & Watts, 10 Iowa, 23. 424. In a proceeding to foreclose a mortgage, where the answer admits the execution of the mortgage and note, and does not deny that the amount claimed in the petition is due and owing, there is no issue requiring evidence. Cooley v. Hobart et al., 8 Iowa, 358. 431. Written instrument. Where a written instrument is set out in the pleadings and recoggnized, it is not necessary to prove it. lbid. 432. Evidence showing the consideration county to a railroad company is inadmissible when the title of his assignor is not impeached by the pleadings. Whitaker v. The County of Johnson, 10 Iowa, 161. 433. General issue. Matter in avoidance, and not negativing the original indebtedness, cannot be introduced under a general denial. Walters v. Wash. Ins. Co., 1 Iowa, 404; see 404, 405, ante. 434. The coverture of the defendant may be given in evidence under the general issue. Painter v. Weatherford, 1 G. Gr. 97. IX. AMENDMENTS AND SUPPLEMENTS. 425. Where a fact is averred in the petition, which is also affirmatively averred in the answer, such fact will be treated as established, without proof thereof on the part of plaintiff, although the answer containing such averment also contained a general denial of the allega- and more fully, title AMENDMENTS, vol. I, p. tions of the petition, and the plaintiff filed a 28. reply in general denial of the allegations of the answer. Curl et al. v. Watson et al., 25 Iowa, 35. 426. Admission by demurrer. An admission by way of demurrer to a plea, in which the facts are alleged, is just as available as though the admission had been made in terms before a jury. Coffin v. Knott, 2 G. Gr. 582. 427. A demurrer admits the facts alleged in the pleading demurred to, but not the matters of law therein contained. Games v. Robb, 8 Iowa, 193. See, further, sub-title DEMURRER, herein, SS 295, 296. 428. Issue. A plea to a declaration was "illegality of contract," setting forth the facts to which there was a general replication. The truth of the allegations of fact was the only is sue presented to the jury. Whether the facts as 435. Should appertain to same rights original. An amended petition should appertain to the same rights of the party plaintiff as the original petition, and should not set up other rights affecting other parties. Frink & Co. v. Taylor, admx., 4 G. Gr. 196. 436. Terms. The terms upon which amendments shall be allowed are left to the discretion of the court below. Oliver v. Townsend et al., 16 Iowa, 430; and more fully, title AMENDMENTS, § 6, et seq., pp. 29, 30, vol. 1. 437. When properly refused. The court may properly refuse an amendment, which, from the very nature of the case, could not be proved. McAfferty v. Hale, 24 Iowa, 356. 438. To petition for injunction. It is compe tent for the court to permit the plaintiff to make a new affidavit, properly stamped, to a petition Amendments and Supplements. substituting name. While there is no provision of the Code of 1851, expressly for an injunction where the affidavit thereto ap- 446. 440. During trial. The district court may, in the exercise of the discretion vested in it, permit amendments during the progress of the trial. Arnold v. Arnold, 20 Iowa, 573; Avery v. Wil son, 26 Ibid. 273; vol. 1, p. 31, § 37, et seq. 441. It is discretionary with the court to allow the amendment of a pleading in conformity to the proof, even after the cause is finally submitted, provided the amendment does not prejudice the adverse party, and even though it be not filed till after verdict. Correll v. Glascock, 26 Iowa, 83. 442. after verdict. An amendment of the petition pending a motion for new trial, to cure a variance in the name of defendant between the petition and a promissory note on which the suit was brought, was held properly allowed without terms, as it worked nc prejudice to the defendant. Thompson v. Wilson, 26 Iowa, 120. 443. Amendment to motion. A motion for a new trial, upon grounds other than newly-discovered evidence, filed within the three days prescribed by the statute, may, by leave of court, be amended at any time during the term, the amendment being germane to the grounds set out in the original motion. Sowden & Co. v. Craig, 20 Iowa, 477. Iowa, 70. 447. Where an action is brought upon a cause of action belonging to a copartnership, in the name of one of the partners only, against the other partner, the court may at any time, in furtherance of justice, permit an amendment by inserting the name of the firm as plaintiff. Dixon v. Dixon, 19 Iowa, 512. 448. Amended answer. Where an amended answer is filed as a substitute for the original one, the issues will be ascertained and determined from that alone. Lauman v. The County of Des Moines, 29 Iowa, 310. 66 449. A pleading was styled in the caption, the third amended answer," and commenced as follows: Now comes the defendant and for an amended answer," etc. It was held that it took the place of, and was not an amendment to, the preceding answer filed; and that after a demurrer was sustained thereto, the defendant was not entitled to a trial of the issues raised by the preceding answers. Bates v. Kemp, 12 Iowa, 99. 450. Where the plaintiff has been permitted to amend his petition, it is error to refuse leave to defendant to amend his answer. Logan v. Tibbett et al., 4 G. Gr. 389. 451. Leave to file an amended answer includes laeve to withdraw the original. An amended answer embracing the allegations of the origi 444. Additional count. An amendment to anal and additional matter should be treated as a petition by the addition of another count will substitute for the original. White v. Hampton, not be regarded as the commencement of a new 9 Iowa, 181. action, where it appears on the face of the petition, as amended, that the cause of action stated in the new count is upon the same state of facts on which the cause of action stated in the original petition is based. Mather v. Butler County, 16 Iowa, 59. 445. Amendment showing character in which plaintiff sues. An amendment of the petition showing the character in which the plaintiff sues, but not changing the plaintiff, is admissible. Hunt v. Collins, 4 Iowa, 56. 452. Inconsistency of amended with original petition. Plaintiff set out in his original petition defendant's indebtedness under a contract maturing at a subsequent day, averring sufficient cause of attachment, which was accordingly issued. The amended petition was filed after the maturing of the indebtedness, and claimed damages for breach of contract and depreciation in value. The issues on the trial were under the amended petition. Held, 1. That | plaintiff had necessarily abandoned the cause of Amendments and Supplements - Verification of Pleadings. action set out in his original petition, as it is in- cause. Harkins v. Edwards & Turner, 1 Iowa, consistent with the one he sought to recover 296. upon. 2. That by this abandonment plaintiff 460. Supplemental petition. Matters arising presumedly admits that his cause of action after the filing of an original petition can stated in the original petition did not exist when be properly pleaded by the plaintiff by a supthe attachment was issued. Youny v. Broad-plemental petition. An amendment to a petibent, 23 Iowa, 539. 453. Error without prejudice. A refusal to amend will not be reversed, where no prejudice to complainant was wrought thereby. Accordingly where a client, under Revision, chap. 134, moved for an order requiring his attorney to pay over money collected, and an amendment of his motion was refused, held, that such refusal was not error, as complainant, under Revision, section 3426, was entitled to the same measure of relief without such amendment as with it. Mansfied v. Wikerson, 26 Iowa, 483. 454. From written to verbal contract. Plaintiff declared on a contract in writing, which the law does not require to be in writing, and which, for want of a sufficient revenue stamp, was inadmissible in evidence. Held, that plaintiff may amend and declare upon a verbal contract. Mc Afferty v. Hale, 24 Iowa, 356. See, more fully, title AMENDMENTS. An 455. Increase of damages claimed. amendment of a petition increasing the amount of damages claimed, was held properly allowed. McDonald v. Chicago & North-western R. R. Co., 26 Iowa, 124. 456. Refiling. Where after plea the declaration is amended and then refiled the old plea is no longer a plea to the new declaration without being refiled, especially after the defendant has been ruled to plead anew. Porter & Brazelton v. Moffat, Mor. 58. 457. To make a new or additional pleading, is to amend, and may be done with the leave of the court at any stage of the proceedings. William v. Miller, 10 Iowa, 334. 458. How defective amendment should be assailed. An amended petition which is defective or insufficient should be corrected by demurrer. It will not be stricken out, because it does not cure the defects pointed out by a demurrer to the original petition. Hamill, Ralston & Co. v. Phenicie, 9 Iowa, 525. 459. When an amended petition makes a new party defendant or contains irrelevant matter as to such new party, a motion to strike such petition from the files on those grounds cannot be made by any other defendant in the tion serves only to amend the original as to matters that were in existence when it was filed. Seever's Admr. v. Hamilton et ux., 11 Iowa, 66. 461. The pleading matters by amendment of the original petition which should be pleaded by supplemental petition does not constitute sufficient cause for dismissing an action. Ibid. 462. In an action on a promissory note, the defendant answered alleging that the maturity of the note sued on was, by the contract of the parties, made contingent upon the payment of certain other notes made by the payee to a third party upon which the defendant was liable as an indorser, whereupon the plaintiff filed a supplemental petition, in which it was alleged that after the commencement of the action the note upon which the defendant was so liable as an indorser was paid and his liability discharged. Held, that a demurrer to the supplemental petition was, under section 2968 of the Revision of 1860 ($ 2731, Code of 1873), properly overruled. The City of Davenport v. Mitchell, 15 Iowa, 194. X. VERIFICATION OF PLEADINGS. 463. As to effect of sworn answer in chancery, both prior and subsequent to Revision of 1860, see sub-title herein, PLEADING IN EQUITY CAUSES. 464. The sufficiency of a verification of a pleading demanded under oath discussed and determined. Kerr & Johnson v. Hedge & Heaton, 12 Iowa, 426. 465. A defective verification to a pleading is waived by pleading thereto. Hughes v. Feeter, 18 Iowa, 142. 466. Where a petition under oath demands an answer under oath, and the defendant files an answer not verified, in a trial upon issues thus made up, the petition will not be taken as true. Trogood & Co. v. Coopers & Clarke, 9 Iowa, 415. 467. Sections 1744, 1745 and 1746 of the Code of 1851 were not designed to enable a party, in an action at law, to obtain a discovery of any and all matters of defense, whether of an equi Verification of Pleadings table or legal character, which he might see proper to set up or plead. McConnoughey v. Weider, 2 Iowa, 408. 468. Whatever might be tried at law the defendant may make an issue upon and require a disclosure under oath from his adversary; but he cannot in this method engraft upon an answer in an action at law matters that are alone cognizable on the equity side of the court. Ibid. 469. Where a verified petition or answer demands an answer under oath, such sworn pleading will not be taken as true in the trial of the issues, made by an answer or replication not under oath. Taylor, Shipton & Co. v. Runyan & Brown, 9 Iowa, 522. 470. When a petition was sworn to and demanded an answer under oath, and the defendant answered, denying each and every allegation in the petition, but not under oath, it was held, that the court erred in rendering judgment as for want of an answer; that the plaintiff should have taken some steps to have the answer removed, and that the petition could not be taken Wolf & Hopp v. Hagensick, 19 Iowa, as true. 590. 471, Affidavit: by agent. Where an agent makes an affidavit for his principal, under section 1748 of the Code, upon a matter of fact involved in a suit, on which the rights of the parties depend, he must satisfy the mind of the court that his means of information are full and adequate. Leach v. Keach, 7 Iowa, 232. 472. Denial not under oath. A pleading under oath will not be taken as true when its allegations are denied by a subsequent pleading not under oath. Lee v. Keister et al., 11 Iowa, 280. 473. A verified replication in response to an answer which did not demand a replication under oath was not, under the Code of 1851, equivalent to the evidence of cãe witness. Arms v. Stocton et al., 12 Iowa, 327. 474. Under Revision of 1860. An answer to a verified petition in an attachment suit which was not sworn to, as required by section 2904 of the Revision of 1860 (Code of 1873, 2660), was properly stricken from the files on motion of the plaintiff. Harper et al. v. Drake, 15 Iowa, 157. not verified. Revision, § 2915 (Code of 1873, § 2679). Shepard v. Ford, 10 Iowa, 502; Mitchell v. Moore, 24 Ibid. 394, and sub-title herein, PLEADING IN EQUITY CAUSES. 476. Where a party to a suit calls upon his adversary to answer or reply under oath, and such answer or replication is made, he is not entitled to a continuance of the cause in order to procure the attendance of the party making the answer or replication under oath as a wit ness to testify concerning the matters embraced in the sworn answer or replication. Stevens v. Campbell, 6 Iowa, 538. 477. Under the Code of 1851 an answer under oath was evidence only as to those allega. tions which were responsive to the petition, Gilbert v. Mosier, 11 Iowa, 498. 478. Set-off. A set-off pleaded by a defendant is not an answer to the petition; it is a counter-claim or cross-action, and need not be under oath, even when the plaintiff requires an answer under oath. Innes & Co. v. Krysher & Munn, 9 Iowa, 295. 479. Where the plaintiff required an answer under oath and defendant filed an answer admitting the material allegations of the petition, and setting up a set-off not under oath; it was held, that the plaintiff erred in striking the set-off from the files. Ibid. 480. When an amendment of a bill for an injunction avers matters material to sustain the injunction, such amendment must be verified to the same extent as the original bill. Walker v. Ayer's Admrs., 1 Iowa, 449. 475. A sworn answer does not make other or greater proof necessary, than if the answer was at all. Variance - Intervention Redundant and Immaterial Matter. 484. It is not a misdescription of a note to 491. between notice and petition. A state that the defendant at Burlington" petition is the foundation of the action, and the made, etc., although it does not appear on the notice should conform to it. In case of variance face of the note that it was given there. Ander the discrepancy should fall upon the notice son v. Brown, Mor. 158. Such discrepancy is cured by appearance. Frink & Co. v. Whicher, 4 G. Gr. 382. 485. The rule requiring a conformity of allegation and proof is not materially changed by the code of civil practice. At common law, a variance was fatal; under the present system of practice, the pleading may be amended to conform to the proof. Hoben v. Burlington & Missouri River R. R. Co., 20 Iowa, 562. 486. Where in a proceeding to foreclose a tax-title, the defendant alleged in his answer that he redeemed the premises in controversy, on the 23d of April, 1854, and referred to a certificate of redemption set out as an exhibit to the answer, which recited that the redemption was made on the 23d day of April, 1855; and the plaintiff in his replication denied that defendant redeemed said lands at the day | named in the answer, or at any other time, it was held that the certificate showing that the redemption was made on the last date mentioned should not be excluded on the ground of a variance. Byington v. Bradley et al., 11 Iowa, 78. 487. In an action of debt on a judgment the declaration described the judgment as for $834.51 damages and costs, and the record produced in evidence showed a judgment for $834.41 damages alone. The variance was held to be fatal. Hight v. White, Mor. 45. 488. The plaintiff in his petition claimed on a special contract with the defendant, and the evidence showed that the contract was entered into by the defendant and another as copartners. It was held that the variance was material and the plaintiff was not entitled to recover. Black v. Struthers, 11 Iowa, 459; see Jones v. Smith, 6 Ibid. 229. 492. In an action by petition and summons, if the petition is in assumpsit and the summons in debt, it is erroneous. Longacre v. Simpson, Mor. 495. XII. INTERVENTION. 493. Intervention. The equitable owner of a promissory note may assert his rights and obtain a recovery by intervening in an action at law commenced by the person holding the possession and legal title to the note against the maker. In such case the intervenor claims adversely to both plaintiff and defendant. § 2930 of the Rev. of 1860 (§ 2683, Code of 1873); Taylor v. Adair and Goff, Intervenor, 22 Iowa, 279. 494. In a proceeding to enjoin the collection of a tax voted to aid in the construction of a railroad through a particular township, under the act for that purpose, the railroad company constructing the road through such township, and to be benefited by the tax, may properly intervene for the purpose of interposing a defense. Brown v. Bryan et al., 31 Iowa, 556. 495. A tax payer has not such an interest as entitles him to intervene in an action against the county to enforce a claim against it, agreed to by the supervisors, unless it appear, from the facts stated, that the board, in their action respecting the claim, assumed the exercise of powers not conferred by law, or that they acted in bad faith. Cornell College v. lowa County, 32 Iowa, 502. XIII. REDUNDANT AND IMMATERIAL MATTER. 496. Facts and evidence. Facts and evidence 489. Where a note sued on, due December should be pleaded; allegations setting out evi 16, 1866, was stated in the petition as due Sep-dence merely should be stricken out as redundtember 16, 1866. Held, that an amendment of ant and irrelevant. The Davenport Gas-light the petition, curing the variance between it and and Coke Co. v. The City of Davenport, 15 Iowa, 6. the note, was properly allowed. Avery v. Wilson, 26 Iowa, 574. 490. The admission of a note in evidence, variant from that described in the petition, is error without prejudice, when the substantial rights of the defendant have not been prejudiced thereby. The Bremer County Bank v. Eastman et al., 34 Iowa, 392. 497. When an answer traverses the plaintiff's cause of action, or states matter in confession and avoidance, and also contains superfluous or redundant matter, such redundancy should be corrected by motion and not by demurrer. The Davenport Gas-light and Coke Co. v. The City of Davenport, 15 Iowa, 6; Hayden v. Anderson, 17 Ibid. 158; Bolinger v. Henderson, 23 Ibid. 165; |