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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 itsell, and must be sufficient in itself ; but one prayer for judgment may include a sum based on all counts looking to a money remedy ;

6. 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 terest and costs," recovery may be what court the petition is in: Morgan had for interest on the sum so claim d, 0. Small, 33-118.

from the commencement of the acPar. 2. Where a petition was tion, but not for interest accrued addressed “to the judge of the Dis- prior to that time: Haren v. Baliltrict Court," etc., but did not contain win, 5--5:30; Butcher v. Brand, 6–2:30); in the headling the names of the par- Anderson v. Kerr, 11-233; S. C., 10ties, nor the word "petition," held, ! 236; but interest accruing after the that it was merely detective in toron, commencement of the action may be and that the court did not err in re- included in the judgment, although tusiny, on account of such defect. to the amount for which judgment is dismiss the action, on motion of de-laskell in the petition is not larve fendant: Smith v. Watson, 28–218. enough to include such interest: Daw

Par. 3. Facis, and not the evi- son 1. Granami, 48–378. dence of facts are to be pleaded: Pan. 5. The same cause of action Darenport G. L. & C. Co. v. City of may be stated in different counts and Darenport, 1.5-6.

in different fomos. The practice preIn an action on a note payable to scribed in the Revision has been blank or berrer, the plaintiff may changed in this respect by the Code, simply allege that it is his property Rev. $ $ 2934, 2936, being omitted: without stating whether he acquired | Van Brunt v. M ther, 48–03. title by delivery or assignment: Dub- It is not nec?ssary to state that the ney o. Reed, 12–31.

different counts relate to the same Our system of pleading requires a 'cause of action, though such statedirect, frank sta:ement of the facts ment does not vitiate the pleading: themelves in ordinary language, so | Pearson v. M. & St. P. R. Co., 45that the opposite party may know | 497. what he is to answer; therefore, helil, Different causes of action should that, under an allegation of due no- not b2 mingled in one count: Sands tice in case of a promissory note, v. Wood, 1-263; but two or more evidence could not be introduced to notes may be sued on in one count; show facts amounting to a waiver of they do not necessarily constitute such notice: Lumbert v. Palmer, 29- more than one cause of action: Stad104; nor, under an allegation of due ler v. Parmlee, 10–23; Merritt v. diligence in the prosecution of action, Nihart, 11-57; Ragan v. Duy, 46can plaintiff show that such diligence 239, 241. would have been unavailing: Wool- Par. 6. A paragraph alone is not sey o. Williams, 34–413.

subject to demurrer. If taken with A plaintiff cannot, in an action upon the other paragraphs a cause of action a contract in which he alleges per- or a defense is stated, that will be sufformance thereof, or of conditions ficient: Benedict v. Hunt, 32-27; D laprecedent, etc., prove or recover upon / uare Co. Bk. v. Duncombe, 48–438. a waiver of such performance. The Whatever is numbered as a distinct evidence must correspond with the al- paragraph should contain something legations: Edgerley v. Farmers' more than a mere conclusion of law, Ins. Co., 43-387; Fauble v. Daris, based upon statement of facts in 48-462.

other paragraphs, otherwise it may Par 4. Where the petition prays be stricken out on motion: Cooper judgment for a certain sum “with in- lv. French, 52–531.

Amended be
fore answer.
R. 22975.

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.

DEMURRER.

Cruses 06. 2018,

1.

SEC. 2648. The defendant may demur to the petition only

where it appears on its sace, either: 20010:35. . That the court has no jurisdiction of the person of the 2961

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,

4. That there is a defect of parties, plaintiffs or defendants; or,

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 properly be interposed to controvert at law, is not a ground of demurrer the legal sufficiency of the matter to a petition in equity. The proper stated in the entire count or petition, remedy where an action is brought by and not to assail a portion of a count, the wrong kind of proceeding, is a or improper, foreign, redundant, or ir- motion to change into the proper relevant matter ther in. If the count proceeding: See $ 2514 and notes. contains sufficient statements to con: An alternative allegation in the stitute a cause of action or defense, it petition, of a material fact is not a is not vulnerable to demirrer: Hay- ground of demurrer. The remedy for den v. Anderson, 17-158.

such defect is by motion. (5 2720): In such cases a notion is the proper Turner' v. First Nat'l Bk. of Keokuk, remedy: Shulte r. Hennessy, 40-352. 26–562. And see notes to $ 2719.

| A demurrer admits the facts which A separate paragraph is not subject are well pleaded in the pleading atto demurrer; see notes to $ 2616, tacked, but not conclusions of law T 6.

therein stated: Lyon v. O'Kell, 14"It is error to sustain a demurrer 2333; Smith v. Henry Co., 1.5-585; which strikes at the whole of the nor allegations which are inconsistent pleading or a division thereof, when with the facts pleaded : Schofield" some of the causes of action therein McDowell, 47-129. It only admits stated are well pleadeil: Zapple v. facts well pleaded: Harkins v. Ed. Rush, 23-99; but where distinct de- | wards, 1-426; Bailey v. Lanningham, tenses were improperly join d in one 52-415. count of an answer, helil, that a de- A demurrer can be interposed only murrer might be directed against one for matters appearing on the face of of them alone: Wright v. Connor, | the petition: Polk Co. 9. Hierb, 3734-210.

| 361; and an exhibit cannot be at. A general demurrer to a petition tached to a demurrer in order to take containing two counts should be advantage of grounds therefor which overruled, if either count is sufficient: would not otherwise appear: RudDarr v. Lilly, 11-1; Edmonds r. dick ». Marshall, 23–243. Cochran, 12-1:8.

Neither the interrogatories attached to a pleading (under $ 2633), nor the deed, a copy of the deed should be inanswers thereto, can, on demurrer, corporated into or attached in such aid a detective pleading: Lane v. pleading: Nosler 1. Munt, 18-212; krekle, 22–99.

and so hell, in case of action on a subWhere a demurrer assigns several scription paper: Hudson v. Plank causes, and is sustained as to one and · Road Co., 4 Gr. 152. overruled as to others, such ruling In declaring upon a contract written will not be reversed on appeal, if any , in a foreign language, it is sufficient of the causes assigned arr good, al- to attach a translation to the petition; though as to the particular ground ia copy in the foreign language need on which it was sustained the ruling not be set out: Christenson v. Gorsch, be found erroneous: Jture v. Perkins, 5–374; Bouer v. Deideker, 38-418,

421. Par. 3. A demurrer on the ground It is not the evidence in the case of another action pending, can only that plaintiff is to attach to his petibe sustained when that fact appears tion, but a copy of the instrument or on the face of the petition: Mosher account on whuch he brings his suit: 1. Inst. Dist. of Steamboat Rock, 42– Lat ourett v. ('ook, 1-1; and a copy of 632, 635.

a written instrument is only necessary PAR. 4. If the defect of parties ap- where the action is founded on such pears on the face of the petition, it instrument: Burney v. Buena Vista will be held waived, imless taken ad-Co., 33–201. vantage of by demurrer: McCormick Plaintiff is not required to attach t', Blossom, 40-256. The defect of par- to his petition copies of instruments ties here contemplated is a non-join- which he intends to introduce in evider of parties who should have been denea: McLott v. Savery, 11-23. joined, either as plaintitis or defend- | Therefore, in an action for damages ants. A mi joiniler or uniting of for right of way, held, that the deed parties who should not be joined, is for such right of way might be intronot a ground of demurrer: Turner 1. (luced as evidence, without having set First Nat'l Bk. of Keokul, 21-562; it out in the answer: Taylor v. C. Mornan r. Carroll, 53-22; king r. R. f St. P. R. CO., 25–371. King, 40-120; Dubuque (o r. Rey. Where a record is not the foundanolds, 41-1.34; Dist. I'p. of White Oak tion of an action, it need not be set 1. Dist. Tp. of Oskaloosa, 44-512, out: Ruddick r. Jarshall, 2:3-24; ; 517; Bort v. Yare, 16-3233; Ind. and where a petition in equity sought School Dist's of Graham Tp. v. Int. ; to have set aside a judgment by conSchool Dist. No.2 50–322.

fession, held, that it was not necesPAR. 5. Any of the causes of de- 'sary to attach a copy of the statemurrer relied on, excepting the one ment on which such judgment was specifiel in this paragraph, should be rendered: l'annice 1. Green, 14-262. stated in a demurrer to a petition in In an action for balance due on setequity, with the same precision as tlement of account, a copy of the acth ugh the case were at law: Hanna count need not be set out: Buehler r. Haures, 4.-137, 441.

v. Reed, 11-182. li causes of act on against different In an action of right it is not neparties are joined, the detendant may cessary to attach copies of title papers ; demur under this paragraph: Coys. (see $3251): Boardman v. Beckicith, well e. Vophy, 46–14.

18–292. l'nder Rev. held that a petition. Where, in an action against a was not vulnerable to demurrer, county treasurer for wrongfully seizsun; ly because it asked relief to ing and seliing plaintil's property, which its averments did not entitle detendant justified under a tax list the pleider: Byers v. Rodlabaugh, and warrant, setting out the Witrrant, 17-53; Orman 1. Orman, 26–361; held, that the answer Wis not demurHaruood 1. Case, 37- 92; but the / rable for not setting oui a copy of the phrase "relief deinanded,'used in the tax list: Games i. Robb, S-193. present Code is broader than cause To enable a party by demurer to of action," used in the corresponding insist on the bar of the statute of limsection of the Rev., and a demurrer itations, the pleading must show atwill lie in an action on a judgment firmatively that the cause of action is brought within fitteen years from its barred by the laws of this state, or of reunion, when leave of court, as some other state where defendant has specified in $ 2.321. is not alleged:, resided: Moulton 1. Walsh, 30–361; Matisi. Ertrett, 47–2.9.

| Broun r'. Rockhold, 49–282. Par 6. Where a pleading is foun- Where a party seeks to recover upded upon breach of covenants in a lon a contract not in writing, upon the

testimony of the person making it v. Allen, 12-366; Smith v. McLean
(under $ $ 3666, 3667), be should so 24-322.
state in his petition. Otherwise it Objection that written notice of loss
would be subject to demurrer: Lab- of stock (provided for in § 1289) is not
cock v. Meek, 45–137.

attached to the petition, should be
The objection that a bill of partic-taken advantage of on demurrer, and
ular-, or a written instrument, is not not by objection to the introduction
set out or attached, must be taken by of such notice in evidence: McKinley
demurrer; it cannot be interposed as v. C. R. I. & P. R. Co., 47-76, 78.
a ground for the exclusion of evidence: As to bills of particulars, see
Farwell v. Tyler, 5-535; Peterson 1 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 and number

shall not be sufficient to state the objection in the terms of the same. R. 2 2877. preceding section, except that a demurrer to an equitable petition C. '51, 2 1754.

for the fifth reason of said section may be stated in the terms thereof.

Demurrer in an action at law, that the ground upon which it is foundthe matters stated in the petitioned, as that the court has no juris" are 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 leadin' to those concluMcLaughlin 1. Bascomb, 36-393 ; sions: Darenport G. L. & C. Co. v. Singer 0. Carers, 26–178.

City of Darenport, 15-6. A party will not be allowed to state The general demurrer is abolisheil: one ground of demurrer, and argue Ibid, and a demurrer not distinctly and obtain judgment upon another: stating the ground in which it is Middleton Sarings' Bank v. City of based, should not be regarded: Jones Dubuque, 15-394; and an objection v. Brunshill, 18-129. not pointed out cannot be raised there. Demurrer held too indefinite: Mcunder: Allen v. Cerro Gordo Co., Killar v. Stout, 13-487 ; sufficiently 34-54.

specific: Darenport v. Whisler, 46While a demurrer should point out 1237.

SEC. 2650. When any of the matters enumerated as grounds Waiver of: an- of demurrer do not appear on the face of the petition, the objecswer: arrest of judgment.

”tion may be taken by answer. If no such objection is take, it R. & 2878.

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.

Section applied in case of defect of r. White, 19-109; Murphy v. Creighparties: McCormick v. Blossom, 40-ton, 45-179, 183; Boude v. M. E. 256; Ryan 1. Mulinix, 45-631. So Church, 47-705. also in case of the statute of limita- The fact that a necessary party is tions, and helil, that the exception not served need not be set up in the contained in the last sentence of this answer, and is not waived by failsection did not apply to such case: ure so to do: Miller v. Mahati'y, 45 Robinson v. Allen, 37-27; but a mis- / -289. joinder of parties is not waived by If the motion in arrest is not made failure to demur or answer, and may in the trial court, it cannot be taken be taken advantage of hy motion in advantage of on appeal: Smith v. arrest: Cogswell v. Murphy, 46-44; Warren Co., 49-336; Melick v. First Bort r. Yiw, 46–3:23; and held, in | National Bank of Tama City, 52case 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 peti- tion 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 lant: Seaton v. Hinneman, 50–395.

Sec. 2651. The defendant may demur to one or more of Demur to the several causes of action alleged in the petition, and answer part: answer.

R. 2 2879. as to the residue.

C. '51, 2 1738. If defendant both demurand answer will be held as waiving his demurrer: to the same cause of action, his answer | Fisher v. Scholte, 30–221.

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.

1.2 2976.

C. 51, 2 1755. See notes to following section. SEC. 2654. Upon a decision of a demurrer, if the unsuccessful Failure to

amend: effect party fail to amend or plead over, the same consequences shall ames ensue as though a verdict had passed against the plaintiff, or the R. 83086.

C. '51, 1771. defendant had made default, as the case may be.

By amending his pleading a'ter a jection to the ruling on demurrer : demurrer thereto has been sustained, | Watts v. Ererett, 47-269. a party waives any error in such rul | Where a defendant stands upon his ing: Duncan v. Hobart, 8-337;Frank- demurrer afier it has been overruled, lin r. Tuogood, 18-515; City of Mus the court may properly render judgratine v. Keokuk N. L. P. Co , 47 ment as upon the finding of the facts 350, 352; Lane v, B. & S. W. R. Co., alleged in the petition: Brown 0. 52-18.

Mallory, 26–46); and judgment upon A party pleading over by filing an demurrer is a bar to any other action answer or reply after his demurrer upon the facts, the sufficiency of has been overruled, thereby waives which was put in issue by such deany error in such ruling: Harmon murrer: Felt v. Turnuri, 48–397. 0. Chandler, 3-150; Mitchell 1. Wis Where a demurrer is interposed to cotta Lord Co., :1-209; Ayers v. Camp- the petition on an account, on the bell, 3–532; Abbott v. Striblen, 6–191; ground that no copy thereof is set Puukett v. Livermore, 5277; Cameron out or attached, and is overruled, the 1. Armstrong, 8-212; Wilcox v. Mc | defendant should not be held as adCune. 21-294; Coakley v. McCarty, mitting the averments of the petition,

4-105: Jones v. Marcy, 49–188; , and on failure to answer, piaintiff's Westphall v. Henney, 49–542; Smith claim should be established by evi1. Warren Co., 49–3:36.

dence as on default: Buehler v Reed, When a d murrer to an answer to 11-182. 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 judg. such 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. fiamfault, held, that he did not waive ob- lilton Co., 37-290, 299.

ANSWER.

Sec. 2655. The answer shall contain:
1. The name of the court, of the county, and of the plaintiff's so

Statements of and defendants, but when there are several plaintiffs and defend- R. € 2800. ants, it shall only be necessary to give the first name of each class, with the words, and others;

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