697. SEC. 2603. In an appeal from an assessment | constitute a valid service upon him, of damages for the location of a high- although he is not "defendant" in way, acknowledgment of service, the action: Libbey v. McIntosh, 60– signed by the auditor, is sufficient to 329. SEC. 2604. Where a notice and return of serv ice were sufficient in form, but the copy delivered erroneously stated the date at which the term of court would commence, held, that the case was not one of no service, but of merely defective service, and that the judgment rendered was not void, and de SEC. 2609. | fendant might, under such circum- 699. nts in is for [20 G. A., ch. 77, amends this section by adding thereto the following:] Provided, that service may be made on any patient confined How served on in the hospitals for the insane by the superintendent or assistant superintendent of such hospitals, and the certificate of such offi- the insane. cer under the seal of such hospital shall be proof of such service. SEC. 2610. [Additional provisions for service of notice on patient in hospital for the insane are made by the act inserted supra in supplement to page 699.] Publication of notice in which the | Hopkins," held, insufficient to condefendant's name was stated as "P. fer jurisdiction: Fanning v. Krapft, T. B. Hopkins," in place of T. P. B. | 61–417. SEC. 2021. 703. tain time to file an amended petition, after a demurrer to the original petition had been sustained, but did not file such amendment until after the expiration of the time fixed, and defendant thereupon moved to strike it from the files, and plaintiff asked for time to make resistance to the motion by filing an affidavit of excuse, which SEC. 2639. he did not file within the time fixed by the court nor until after the argument of defendant on the motion to strike was closed, held, that it was not error to strike the amended petition from the file, as asked: Hayward v. Goldsbury, 19 N. W. Rep., 307. 708. Where a demurrer has been sub- | the prior submission having been set mitted and not yet decided, the court aside: Poweshiek Co. v. Cass Co., may allow the party filing the de- | 18 N. W. Rep., 895. murrer to amend it and re-submit it, SEC. 2648. or to demur or answer thereto, obviates the necessity of notice of the amendment: Kimball v. Bryan, 56632. The fact that the averments of the parties, unless raised by demurrer or Objection on ground of defect of petition do not entitle plaintiff to the relief demanded should be raised by demurrer, and not through motion to strike them from the petition; but if the motion is made and passed upon without objection on that ground, the form of raising the question will not constitute reversible error: Rhodabeck v. Blair Town Lot & Land Co., 17 N. W. Rep., 582. SEC. 2649. answer, will be deemed waived: Lillie v. Case, 54-177. Misjoinder of parties is not a ground of demurrer. If not raised by motion it is waived, and cannot be afterwards raised, even in arrest of judgment: Miller v. K. & D. M. R. Co., 16 N. W. Rep., 567. 712. SEC. 2650. Misjoinder of parties is waived where it does not appear on the face of the petition, if not taken by answer: McKeever v. Jenks, 59-300. Such defect cannot be first raised by motion in arrest of judgment: Miller v. K. & D. M. R. Co., 16 N. W. Rep., 567. If the facts stated in the petition do not entitle plaintiff to relief, the court may, at the trial, direct the jury to find for defendant: Smith v. B., C. R. & N. R. Co., 59-73. An objection that the facts stated in the petition do not entitle the plaintiff to any relief whatever, unless raised by demurrer, must be ta ken advantage of by motion in arrest of judgment. Such an objection, SEC. 2654. apparent upon the face of the petition. is waived by going to trial on the merits and cannot be first raised in an instruction: Cruver v. C., M. & St. P. R. Co., 17 N. W. Rep., 661. Where a defect in a petition which might be raised by demurrer is not thus attacked, and defendant succeeds on the trial, he cannot, upon appeal by plaintiff, insist that on account of such defect plaintiff was not entitled to recover; Kendig v. Overhulser, 58-195. An objection which might be raised by demurrer or motion in arrest, cannot be raised for the first time on appeal: Church v. Higham, 44–482. Section applied: Hanks v. North, 58-396, 713. The rule that the filing of an amended pleading waives any error in sustaining a demurrer to such pleading is only applicable where the party, by pleading over, supplies omissions or cures defects in his pleading pointed out by the demurrer. Therefore, the filing of an amendment to an answer setting up a new defense does not waive error in sustaining a demurrer to the defense set up in the original answer: Ingham v. Dudley, 60-16. The fact that the defendant, after excepting to the overruling of his demurrer, files an answer which is withdrawn before the case comes on for trial, does not constitute a waiver of error in the overruling of his demurrer. The withdrawal of the answer restores the parties to the posi tion they were in before the answer was filed: Jordan v. Kavanagh, 18 N. W. Rep., 851. Where one division of an answer sets out a counter-claim, and a demurrer to that division as well as another portion of the answer is sus tained, an amendment as to the other portion will not waive error in the ruling as to the counter-claim: Folsom v. Winch, 19 N. W. Rt p., 305. but does not ask equitable relief, the issue is to be tried as one at law; and held, that in an action upon a contract the defendant might set up mistake as a defense without asking a reformation of the contract in equity: Carey v. Gunnison, 17 N. W. Rep., Where the defendant sets out an equitable defense in an action at law, 881. 715. SEC. 2659. The provisions of § 2540 allowing | som v. Vinch, 19 N. W. Rep., 315 a counter-claim to be pleaded, even (overruling on rehearing the former when barred as an independent opinion in same case). cause of action, are applicable to counter-claims under the first or third subdivision of this section, as well as to those under the second: Fol In an action in equity by an insurance company for the cancellation of a policy, held, that a cause of action in behalf of defendant for a loss un |