ordinary, and by the words "petition in equity," if the proceedings are equitable; 3. A statement of the facts constituting the plaintiff's cause of action; 4. A demand of the relief to which the plaintiff considers himself entitled, and if such demand be for money, the amount thereof must be stated; 5. Where the petition contains more than one cause of action, each must be stated wholly in a count or division by itself, and must be sufficient in itself; but one prayer for judgment may include a sum based on all counts looking to a money remedy; In a petition by equitable proceedings, each division shall also be separated into paragraphs, numbered as such for more convenient reference, and each paragraph shall contain, as near as may be convenient, a complete and distinct statement. PAR. 1. The caption determines what court the petition is in: Morgan v. Small, 33-118. PAR. 2. Where a petition was addressed to the judge of the District Court," etc., but did not contain in the heading the names of the parties, nor the word "petition," held, that it was merely defective in form, and that the court did not err in refusing, on account of such defect. to dismiss the action, on motion of defendant: Smith v. Watson, 28-218. PAR. 3. Facts, and not the evidence of facts are to be pleaded: Davenport G. L. & C. Co. v. City of Davenport, 15-6. In an action on a note payable to blank or bearer, the plaintiff may simply allege that it is his property without stating whether he acquired title by delivery or assignment: Dubney v. Reed, 12-315. Our system of pleading requires a direct, frank statement of the facts themselves in ordinary language, so that the opposite party may know what he is to answer; therefore, held, that, under an allegation of due notice in case of a promissory note, evidence could not be introduced to show facts amounting to a waiver of such notice: Lumbert v. Palmer, 29104; nor, under an allegation of due diligence in the prosecution of action, can plaintiff show that such diligence would have been unavailing: Woolsey v. Williams, 34-413. A plaintiff cannot, in an action upon a contract in which he alleges performance thereof, or of conditions precedent, etc., prove or recover upon a waiver of such performance. The evidence must correspond with the allegations: Edgerley v. Farmers' Ins. Co., 43-581; Fauble v. Daris, 48-462. PAR 4. Where the petition prays judgment for a certain sum "with in terest and costs," recovery may be had for interest on the sum so claimed, from the commencement of the action, but not for interest accrued prior to that time: Haren v. Baldwin, 5-530; Butcher v. Brand, 6-235; Anderson v. Kerr, 10-233; S. C., 10236; but interest accruing after the commencement of the action may be included in the judgment, although the amount for which judgment is asked in the petition is not large enough to include such interest: Dawson r. Graham, 48-378. PAR. 5. The same cause of action may be stated in different counts and in different formas. The practice prescribed in the Revision has been changed in this respect by the Code, Rev. §§ 2934, 2936, being omitted: Van Brunt v. Mother, 48-503. It is not necessary to state that the different counts relate to the same cause of action, though such statement does not vitiate the pleading: Pearson v. M. & St. P. R. Co., 45497. Different causes of action should not be mingled in one count: Sands v. Wood, 1-263; but two or more notes may be sued on in one count; they do not necessarily constitute more than one cause of action: Stadler v. Parmlee, 10-23; Merritt v. Nihart, 11-57; Ragan v. Day, 46239, 241. PAR. 6. A paragraph alone is not subject to demurrer. If taken with the other paragraphs a cause of action or a defense is stated, that will be sufficient: Benedict v. Hunt, 32-27; Delaware Co. Bk. v. Duncombe, 48-488. Whatever is numbered as a distinct paragraph should contain something more than a mere conclusion of law, based upon statement of facts in other paragraphs, otherwise it may be stricken out on motion: Cooper v. French, 52-531. Amended before answer. R. & 2975. SEC. 2647. The plaintiff may amend his petition without leave at any time before the answer is filed, without prejudice to the proceedings already had; but a notice of such amendment shall be served on the defendant or his attorney, and the defendant shall have the same time to answer or demur thereto as he had to the original petition. Causes of R. 2876, 2918, 2920, 2961, 2963, 296 L DEMURRER. SEC. 2648. The defendant may demur to the petition only where it appears on its face, either: 1. That the court has no jurisdiction of the person of the defendant or the subject of the action; or, 2. That the plaintiff has not legal capacity to sue; or, 3. That there is another action pending between the same parties for the same cause; or, or, 4. That there is a defect of parties, plaintiffs or defendants; 5. That the facts stated in the petition do not entitle the plaintiff to the relief demanded. 6. That the petition on the face thereof shows that the claim is barred by the statute of limitations; or fails to show it to be in writing where it should be so evidenced or, if founded on an account, or writing as evidence of indebtedness, and neither of such writings, account, or copy thereof is incorporated into or attached to such pleading, or a sufficient reason stated for not doing so. IN GENERAL: A demurrer can only | That there is an adequate remedy at law, is not a ground of demurrer to a petition in equity. The proper remedy where an action is brought by the wrong kind of proceeding, is a motion to change into the proper proceeding: See § 2514 and notes. An alternative allegation in the petition, of a material fact is not a Hay-ground of demurrer. The remedy for such defect is by motion. (§ 2720): Turner v. First Nat'l Bk. of Keokuk, 26-562. In such cases a motion is the proper remedy: Shulte r. Hennessy, 40-352. And see notes to § 2719. A separate paragraph is not subject to demurrer; see notes to § 2646, T 6. A demurrer admits the facts which are well pleaded in the pleading attacked, but not conclusions of law therein stated: Lyon v. O'Kell, 14– It is error to sustain a demurrer 233; Smith v. Henry Co., 15-285; which strikes at the whole of the nor allegations which are inconsistent pleading or a division thereof, when with the facts pleaded: Schofield v. some of the causes of action therein McDowell, 47-129. It only admits stated are well pleaded: Zapple v. facts well pleaded: Harkins v. EdRush, 23-99; but where distinct de-wards, 1-426; Bailey v. Landingham, fenses were improperly joined in one 52-415. count of an answer, held, that a demurrer might be directed against one of them alone: Wright v. Connor, 34-240. A general demurrer to a petition containing two counts should be over: uled, if either count is sufficient: Darr v. Lilly, 11-4; Edmonds v. Cochran, 12-438. A demurrer can be interposed only for matters appearing on the face of the petition: Polk Co. v. Hierb, 37361; and an exhibit cannot be attached to a demurrer in order to take advantage of grounds therefor which would not otherwise appear: Ruddick v. Marshall, 23–243. Neither the interrogatories attached to a pleading (under § 2633), nor the answers thereto, can, on demurrer, aid a defective pleading: Lane v. Krekle, 22-399. Where a demurrer assigns several causes, and is sustained as to one and overruled as to others, such ruling will not be reversed on appeal, if any of the causes assigned are good, although as to the particular ground on which it was sustained the ruling be found erroneous: Jeure v. Perkins, 29-262. PAR. 3. A demurrer on the ground of another action pending, can only be sustained when that fact appears on the face of the petition: Mosher r. Ind. Dist. of Steamboat Rock, 42632,635. PAR. 4. If the defect of parties appears on the face of the petition, it will be held waived, unless taken advantage of by demurrer: McCormick v. Blossom, 40-256. The defect of parties here contemplated is a non-joinder of parties who should have been joined, either as plaintiffs or defendants. A misjoinder or uniting of parties who should not be joined, is not a ground of demurrer: Turner v. First Nat'l B'k. of Keokuk, 26-562; Mornan r. Carroll, 35-22; King v. King, 40-120; Dubuque Co v. Reynolds, 41-454; Dist. Tp. of White Oak v. Dist. Tp. of Oskaloosa, 44-512, 517; Bort v. Yaw, 46-323; Ind. School Dist's of Graham Tp. v. Ind. School Dist. No. 2. 50-322. PAR. 5. Any of the causes of demurrer relied on, excepting the one specified in this paragraph, should be stated in a demurrer to a petition in equity, with the same precision as though the case were at law: Hanna v. Hawes, 45-437, 441. If causes of act on against different parties are joined, the defendant may demur under this paragraph: Cogs well v. Murphy, 46–44. Under Rev. held that a petition was not vulnerable to demurrer, simply because it asked relief to which its averments did not entitle the pleader: Byers v. Rodabaugh, 17-53; Orman v. Orman, 26-361; Harwood v. Case, 37-92; but the phrase "relief demanded," used in the present Code is broader than "cause of action," used in the corresponding section of the Rev., and a demurrer will lie in an action on a judgment brought within fitteen years from its ren ition, when leave of court, as specified in § 2521. is not alleged: Wattse. Everett, 47-269. PAR. 6. Where a pleading is founded upon breach of covenants in a deed, a copy of the deed should be incorporated into or attached to such pleading: Nosler v. Hunt, 18-212; and so held, in case of action on a subscription paper: Hudson v. Plank Road Co., 4 Gr. 152. In declaring upon a contract written in a foreign language, it is sufficient to attach a translation to the petition; a copy in the foreign language need not be set out: Christenson v. Gorsch, 5-374; Bower v. Deideker, 38-418, 421. It is not the evidence in the case that plaintiff is to attach to his petition, but a copy of the instrument or account on which he brings his suit: Latourett v. Cook, 1-1; and a copy of a written instrument is only necessary where the action is founded on such instrument: Barney v. Buena Vista Co., 33-261. Plaintiff is not required to attach to his petition copies of instruments which he intends to introduce in evidence: MeLott v. Savery, 11-323. Therefore, in an action for damages for right of way, held, that the deed for such right of way might be introduced as evidence, without having set it out in the answer: Taylor v. C. R. & St. P. R. Co., 25-371. Where a record is not the foundation of an action, it need not be set out: Ruddick r. Marshall, 23-243; and where a petition in equity sought to have set aside a judgment by confession, held, that it was not necessary to attach a copy of the statement on which such judgment was rendered: Vannice v. Green, 14-262. In an action for balance due on settlement of account, a copy of the account need not be set out: Buehler v. Reed, 11-182. In an action of right it is not necessary to attach copies of title papers; (see $3251): Boardman v. Beckwith, 18-292. Where, in an action against a county treasurer for wrongfully seizing and selling plaintiff's property, defendant justified under a tax list and warrant, setting out the warrant, held, that the answer was not demurrable for not setting out a copy of the tax list: Games v. Robb, 8-193. To enable a party by demurer to insist on the bar of the statute of limitations, the pleading must show affirmatively that the cause of action is barred by the laws of this state, or of some other state where defendant has resided: Moulton v. Walsh, 30-361; Brown v. Rockhold, 49–282. Where a party seeks to recover upon a contract not in writing, upon the and number testimony of the person making it The objection that a bill of partic- v. Allen, 12-366; Smith v. McLean 24-322. Objection that written notice of loss of stock (provided for in § 1289) is not attached to the petition, should be taken advantage of on demurrer, and not by objection to the introduction of such notice in evidence: McKinley v. C. R. 1. & P. R. Co., 47-76, 78. As to bills of particulars, see § 2713. SEC. 2649. A demurrer must specify and number the grounds Specify causes of objection to the pleading, or it will be disregarded; and it shall not be sufficient to state the objection in the terms of the preceding section, except that a demurrer to an equitable petition for the fifth reason of said section may be stated in the terms same. R. 2877. C. '51, 1754. swer: arrest of judgment. R. 2878. thereof. Demurrer in an action at law, that the ground upon which it is foundthe matters stated in the petition ed, as. that the court has no jurisare not sufficient to constitute a diction, or, that there is no cause of cause of action," should be disre-action, or such like, it need not give garded as not sufficiently specific: the reasons leading to those concluMcLaughlin r. Bascomb, 36-593; sions: Davenport G. L. & C. Co. v. Singer v. Cavers, 26–178. City of Davenport, 15-6. A party will not be allowed to state one ground of demurrer, and argue and obtain judgment upon another: Middleton Sarings' Bank v. City of Dubuque, 15-394; and an objection not pointed out cannot be raised thereunder: Allen v. Cerro Gordo Co., 34-54. While a demurrer should point out SEC. 2650. When any of the The general demurrer is abolished: Ibid, and a demurrer not distinctly stating the ground on which it is based, should not be regarded: Jones v. Brunskill, 18–129. Demurrer held too indefinite: McKellar v. Stout, 13-487; sufficiently specific: Davenport v. Whisler, 46237. matters enumerated as grounds Waiver of: an of demurrer do not appear on the face of the petition, the objection may be taken by answer. If no such objection is taken, it shall be deemed waived. If the facts stated by the petition do not entitle the plaintiff to any relief whatever, advantage may be taken of it by motion in arrest of judgment, before judgment is entered. v. White, 19-109; Murphy v. Creighton, 45-179, 183; Boude v. M. E. Church, 47-705. The fact that a necessary party is not served need not be set up in the answer, and is not waived by failure so to do: Miller v. Mahaffy, 45 Section applied in case of defect of parties: McCormick v. Blossom, 49256; Ryan v. Mullinix, 45-631. So also in case of the statute of limitations, and held, that the exception contained in the last sentence of this section did not apply to such case: Robinson v. Allen, 37-27; but a mis--289. joinder of parties is not waived by failure to demur or answer, and may be taken advantage of by motion in arrest: Cogswell v. Murphy, 46-44; Bort v. Yaw, 46-323; and held, in case of a defect of parties in a pro-94. ceeding in equity, when such defect Where the facts stated in the petiwas vital to the character of the petition do not entitle plaintiff to any retion and the relief asked, that it might lief, although no demurrer on that be first insisted on at the final hear- ground is interposed, the court may ing: Swan v. Clark, 36–560. instruct the jury to find for defendSection applied generally: Crossen | ant: Seaton v. Hinneman, 50–395. If the motion in arrest is not made in the trial court, it cannot be taken advantage of on appeal: Smith v. Warren Co., 49-336; Melick v. First National Bank of Tama City, 52 Demur to SEC. 2651. The defendant may demur to one or more of the several causes of action alleged in the petition, and answer part: answer. as to the residue. If defendant both demur and answer will be held as waiving his demurrer: to the same cause of action, his answer Fisher v. Scholte, 30-221. R. 2 2879. SEC. 2652. The opposite party shall be deemed to join in a Joinder in. demurrer, whenever he shall not amend the pleading to which it R. ¿ 2900. is addressed. See notes to § 2654. SEC. 2653. Upon a demurrer being overruled, the party Answer after. demurring may answer or reply. See notes to following section. R. 2976. of. SEC. 2654. Upon a decision of a demurrer, if the unsuccessful Failure to party fail to amend or plead over, the same consequences shall amend: effect ensue as though a verdict had passed against the plaintiff, or the R.3086. defendant had made default, as the case may be. By amending his pleading a'ter a demurrer thereto has been sustained, a party waives any error in such ruling: Duncan v. Hobart, 8–337;Franklin r. Twogood, 18-515; City of Muscatine v. Keokuk N. L. P. Co, 47350, 352; Lane v. B. & S. W. R. Co., 52-18. A party pleading over by filing an answer or reply after his demurrer has been overruled thereby waives any error in such ruling: Harmon v. Chandler, 3-150; Mitchell v. Wiscotta Land Co., -209; Ayers v. Campbell, 3-582; Abbott v. Striblen, 6-191; Paukett v. Livermore, 5–277; Cameron t. Armstrong, 8-212; Wilcox v. McCune. 21-294; Coakley v. McCarty, 34-105: Jones v. Marcy, 49-188; Westphall v. Henney, 49-542; Smith r. Warren Co., 49-336. jection to the ruling on demurrer : Where a defendant stands upon his Where a demurrer is interposed to the petition on an account, on the ground that no copy thereof is set out or attached, and is overruled, the defendant should not be held as admitting the averments of the petition, and on failure to answer, plaintiff's claim should be established by evidence as on default: Buehler v Reed, 11-182. When a demurrer to an answer to which a reply is not necessary is over- Where a party stands on his deruled, if the party wishes to stand on murrer, and appeals from the judgsuch demurrer, he must have that ment overruling it, judgment should fact entered of record; a mere excep- be rendered against him, and on tion to the ruling will not be suffi- affirmance of the judgment on appeal, cient: Wilcox v. McCune, 21-294. he cannot be permitted to withdraw Where defendant, upon the over-bis demurrer, and proceed to trial on ruling of his demurrer, took time to the merits: Dunlap v. Cody, 31answer, but no answer was filed, and 260. judgment went against him by de- Section applied: Grimes v. tiamfault, held, that he did not waive ob-ilton Co., 37-290, 299. C. '51, 1771. ANSWER. SEC. 2655. The answer shall contain: Statements of 1. The name of the court, of the county, and of the plaintiffs and defendants, but when there are several plaintiffs and defend- R. 2880. ants, it shall only be necessary to give the first name of each class, with the words, and others; |