Gambar halaman
PDF
ePub
[ocr errors]

[ocr errors]
[ocr errors]

[The word “duly" in the first line, as it stands in the original, is omitted in the printed code.)

An unverified petition, even in all Filing a denurrer to a petition case where verification is made neces- waives any error in the ruling of the sary is not a nullity, and advantage court on motion to strike out for of the detect can only be taken by wart of verification: Stineman v. motion to strike: Rush v. Rush, 46- | Beath, 36-73. 615.

Sec. 2678. The verification of the pleading does not apply to when applicathe amount claimed, except in actions founded on contract, express ble to amount or implied, for the payment of money only.

R. 2 2914. SEC. 2679. The verification shall not make other or greater proof proof necessary on the side of the adverse party.

R. 2 2915. The provisions as to verification ap- as to the amount of testimony necesply equally to pleadings in ordinary sary to overcome a sworn answer in and equitable proceedings: Shepard a chancery proceeding, is abrocated: r. Fori, 10-502, (discussing and ex- | Wilson r. Holcomb, 13-110 ; Mitchell plaining previous cases,) and the rule ' v. Moore, 24-394.

Sec. 2680. Courts may permit the amendments authorized by Amendments. this chapter to be made without being verified, unless a new and not verified. distinct cause of action or counter claim is thereby introduced.

Section applied: Tegler v. Ship-I man, 33–194, 197.

SLANDER-LIBEL.

SEC. 2681. In an action for slander or libel, it shall not be stato necessary to state any extrinsic facts for the purpose of showing petition.

R. 2925. the application to the plaintiff of any defamatory matter out of which the cause of action arose, or that the matter was used in a defamatory sense ; but it shall be sufficient to state the delamatory sense in which such matter was used, and that the same was spoken or published concerning the plaintiff.

When words have a libelous mean- | Wilson 1. Beighler, 4-427; and exing on their face, it is sufficient to set planatory circumstances known to them out without alleging such mean- both parties will be considered as ing, but if they are not actionable on part of the words: De Moss i'. Haytheir face, plaintiff must allege the cock. 15-149. defamatory sense in which they werel Words imputing to a woman want used, and that they were so used in of chastity are actionable per se; Cox relation to him: Kinyon v. Palmer, v. Bunker, Mor. 269; Daily 1. Rey18-377; but the extrinsic facts show- nolds, 4 Gr. 354; Abrams r. Forshee, ing that they were so used need not 33–274, 281; so are words charging her he alleged but are matter of proof: with being a whore: Smith ». SiThis; Clarke r. Jones, 49–474; Swear- lence, 4-321; or charging an unmaringen v. Stanley, 23-115.

ried woman with having had a child: Words are to be taken in their Beardsley v. Brilgman, 17-290; but plain and natural import and in the not words charging a woman with sense in which they would be under procuring an abortion upon herself: stood by those to whom they were ad-llatfield v. Gan", 15-177. dressed: Truman v. Taylor, 4-424; |

Sec. 2682. In any action brought to recover damages for an of answer in injury to person, character, or property, the defendant may set and for «ther

torts. forth in a distinct division of his answer, any facts of which evi- R. 8 2029. dence is legally admissable to mitigate or otherwise reduce the damages, whether a complete defense or justification be pleaded or not, and he may give in evidence the mitigating circumstances

whether he prove the defense or justification or not, and no mitigating circumstances shall be proved unless plead, except such as are shown by, or grow out of, the testimony introduced by the adverse party; and in actions for slander or libel, an unproved allegation of the truth of the matter charged, shall not be deemed proof of malice, unless the jury on the whole case find that such defense was made with malicious intent.

[The word “ prove" in the seventh line, as in the original, is “provoke" in the printed code.]

All mitigating circumstances, cer- | the words spoken: Desmond v. Brown, tainly all contemporaneous with the 30-13. act which might at common law have To justify the charge of a crime, been given in evidence under the gen- the truth of the charge, i.e., the comeral issue, may still be given under mission of the crime, must be estaban answer in denial. But all which lished by such evidence as would tend to show the truth of the charge justify the conviction of plainitff if inust be pleaded. It is the safest rule, he were on trial therefor under indietto state every fact relieil on in miti ment: Bradley v. L'ewnely, 2 Gr., 231; gation: Becordsley o. Bridgman, 17– Forshee v. Abrams, 2–571; Fountain v. 290.

W'est, 23–9; Mott v. Dyuson, 46–5:53. Facts relied upon as mitigating cir- Section referred to in Barton ». cumstances must be pleaded as such, Thompson, 46–30. and not by way of defense or justifi. The bad character of plaintiff may cation: Ronan v. Williams, 41-680. be shown in mitigation of damages :

That slanderous words were spoken Armstrong e. Pearson, 8–29; but dethrough heat of pas.ion, under provo- fendant cannot plead either in decanon, may be shown in mitigation, fense or mitigation that the plaintiff but not in complete defense: Mc- has been guilty of a specific crime in Clintock i, Crick, 4-453.

no way connected with the alleged It is no justification that defendant defamatory words, or the occasion on veliered the words to be true. To which they were used: Fisher v. T'ice, justify, he must prove they were, in 20–479. Ner can defendant prove fact, true. But the belief may be specific offenses or particular acts of given in evidence in mitigaton: dishonesty not connected with the Fountain v. West, 23-9.

transaction under investigation, nor Under Rev. $ 2929 it was held set up in the pleadings; nor that the proper for defendant to allege miti- plaintiff was in the habit of commitgiting circumstances without confess- ting such offenses: Fountain v. West, ing the speaking of the words, and 2:3-9. that it was not necessary to deny Section construed generally: Kinmalice, or aver belief in the truth of yon v. Palmer, 18–377.

INTERVENTION

[blocks in formation]

Sec. 2683. Any person who has an interest in the matter in litigation, in the success of either of the parties to the action, or against both, may become a party to an action between other persons, either by joining the plaintiff in claiming what is sought hy the petition, or by uniting with the defendant in resisting the claim of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant, either before or after issue has been joined in the cause and before the trial commences.

A tax payer, as such, has not such County, 32-520; but where the board an interest in the matter in litigation aid, co.lude and conspire with the as to en'itle him to intervene in a opposite party to procure judgments suit against his county to enforce the against the cunty, a tax payer inay payment of a claim- at least in the intervene: Grecley v. County of Llen, absence of a showing that the board 40–72. of supervisors, acting in bad faith, In a proceeding to enjoin the col. are failing properly to defend against lection of a tax in aid of a railway, such claim: Cornell College v. Ioua 'the railway company may intervene, although it be not yet entitled to the l A party, held, entitled to intervene tax: Broun v. Bryan, 31-556. | under the facts of a particular case :

A party eliming to be the equit- | Young v. Tucker, ::9-596. able owner of a promissory 1 ote may Where a verdict has been rendered, intervene, and have his righis estab)- or the parties have agreed upon the Ished in a suit brought by the pos- judgment to be entered, it is too late sessor and holder of the legal title to intervene: Henry V. Cass Co. against the owner: Taylor v. Adair, Jill, etc. Co., 42-33; First National 22-279.

Bank of Leon v. Gill, 50-4:25. The purchaser at a foreclosure sale A judgment in an action where a is su rog td to the rights of the third party has intervened as defenclmortgagee, ind may intervene in the ant, is conclusive both upon the orixifor e osure srit which is still pending, nal defendant and the intervenor: as to other defendants: Dyer v. Har- | Witter v. Fisher, 27-9. ris, 2-268.

R. 2 2931.

Sec. 2684. The court shall determine upon the intervention cannot delay at the same time that the action is decided, and the intervenor manection. has no right to delay; and if the claim of the intervenor is not sustained, he shall pay all costs of the intervention.

It is not intended that one not as the recorul by verdict or by agreeparty s'all be allowed to interpose ment: Henry v. Cass Co. Mill, etc. and open up a controversy which las Co., 42-33. been settled between the parties to

SEC. 2685. The intervention shall be by petition, which must low effected set forth the facts on which the intervention rests, and all the pleadings therein shall be governed by the same principles and rules, as obtain in other pleadings provided for in this chapter. But if such petition is filed during term, the court shall direct the time in which an answer shall be filed thereto.

[ocr errors]

AMENDMENTS.

SEC. 2686. No variance between the allegations in a pleading variance and the proof is to be deemed material, unless it has actually mis- R. 2972.

C. '51, 2 17.8. lead the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be shown ly proof to the satisfaction of the court, and such proof must also show in what respect he has been so misled, and thereupon the court may order the pleading to be amended upon such terms as may be just.

No variance is material unless the prejudice: Bower 7. Deideker, 38-118. adverse party has been mislead to his Sec. 2687. Wben the variance is not material as provided Same.

R. 2973. in the last section, the court may direct the fact to be found ::

'31, 1737. according to the evidence, and may order an immediate amendment without costs.

Sec. 2688. When, however, the allegation of the claim or ivhen material, defense to which the proof is directed is unproved in its general R. & 2971. meaning, it shall not be deemed a case of variance within the last two sections, but a failure of proof.

Sec. 2689. The court may, on motion of either party at any Amendments time, in furtherance of justice, and on such terms as may be ti

time. proper, permit such party to amend any pleadings or proceedings R.2,2977

- C. 31, 2 1709. by adding or striking out the name of a party, or by correcting a

made at any

mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleadings or proceedings to the facts proved.

[The word "pleadings" in the last line, as in the original, is pleading" in the printed cod-.]

RIGHT TO AMEND GENERALLY: Sol As to amending petition for injuncfar as substantial rights are nottion, see note to $ 33%6. prejudiced the court should allow WHAT AMENDMENTS ARE PERamendments on proper terms rather MISSIBLE: Where suit was brought than dismiss the action and compel by an individual partner, when it the party to commence anew: Ihark- should have have been by the firmi. ins 1. Eduards, 1-296; Seevers v. helil, proper to allow an amendment Hamilton, 11-66.

making the other partner a joii.t The rule is to allow amendments; plaintiff : Hodges v. Kimball," 49– to refuse them, the exception: Pride 577; and in such case where a new

. Wormcood, 27-257; Hinkle v. action would have been barred, huli, Daren port, 38–355.

error to refuse such amendment: DixAmendments within the limits of on v. Diron, 19-512. the statute should always be allowed A petition may be amended by when substantial justice will thereb: striking out the name of a party be promoted: Dicon v. Dixon, 19-improperly joined as plaintiff': Butch512; Tegler 1. Shipman, 35-194; er v. Coriton, 11-47; Hinkle r. DaMillor r. Perry, 38-301.

venport, 38–355). The right to amend is not absolute It is not error to allow an amendand unconditional, but rests within ment to a petition so as to increase the sound discretion of the court: the amount claimed: McDonald v. Brockman v. Berryhill, 16-183; Hays C. & N. W. R. CO., 26-124, 138. ". Turner, 2:3–214; The State v. Mayo! TIME WITHIN WHICH AMEND0r, etc , of Keokuk, 18-388; and such MENTS MAY BE FILED : Amendments discretion will not be interfered with may be allowed in a proper cas. after on appeal unless substantial preju- the jury are sworn (overruiing dice is shown: Fulmer v. Fulmer, Cole ». Suan, 4 Gr. 320): Williams 22-231.

11. Miller, 10–344 ; and, in such case, Before the discretion exercised in the jury need not be re-sworn: Hingranting leave to amend can be beld kle v. Davenport, 38–355. So, they erroneous, satisfactory evidence must may be allowed during the progr ss be furnished of abuse thereof: of the trial, on proper terms : ArPhænix Ins. Co. v. Dunkwardt, 47-nold v. Arnold, 21–273 ; or, after the 432.

evidence is received, for the purpose The court in the exercise of its dis- of adapting the plea ling to the case cretion must see that the amendment made by the evidence: Ellis 1. Lindis substantial, and not a repetition of ley, 37-334 ; or, after the commencethe former pleading: Harrey i'. ment of argument to the jury, where Spulding, 7-423; and if a mere rep- the claim is not changed by the euition, it should he rej. cted: Mayer amendment: Hainmond v. S. :(. d r. Woodbury, 14-57.

P. R. Co., 49–50. And, where an The terms upon which an amend- | amerdment was allowed while the ment may be ma le rest within the second argument was being made, discretion of the court, and its action the Supreme Court held that they with respect thereto, will not be re- would not interfere with the discre. viewed unless abuse of discretion is tionary power of the trial court in shown: Harrison r. Colton, 31-16. such matters, unless satisfied that the

WHAT MAY BE AMENDED: A de- order made was not in furtherance of · murrer may be amended, as other justice: Smith v. Howard, 23-51. pleadings: Jiorrison v. Miller, 46-34; Where leave to amend was granted so may a motion for new trial: Sou- after the conclusion of the argument den v. Craig, 20-177; so may the re- to the jury, and the amendment was turn of an alternative writ of man- filed after the return of verdict, it bedamus: The State v. Mayor, etc., of ing slight and only for the purpose Keokuk, 18-388; and where the veri- of conforming the petition to the fication of a pleading is detective, the proof, held, that it was properly alcourt may allow a new verification lowell: Correll 1. Glasscock, 26-83; to be made by way of amendment: so held, also, where the allowance of Hughes v. Feeter, 18-142.

| the amendment was made after the decision of the court was announced, v. Henderson, 47–131. But, in such but before decree was formally ent r- case, upon a showing of newly dised: Sprink 1. McCall, 52-432; so, I covered evidence, such as would enalso, where an amendment was al- title the party to a new trial after de. lowed after the issue on a plea in cree, amended or additional pleadings, abatement had been tried and deter- rendered necessary by such evidence. mined: Hunt 1. Collins, 4-56. may be filed, and another trial had :

Amendments after verdici and be- | Adams Co. v. B. & M. R. R. Co., 44 fore judgment to couform the plead- -3:35. ings to the proofs, are generally Where, after a decree adjudging to allowed. It is also allowable, for the a party the ownership of specific proppurpose of remedying an error, to erty had been attirmed in the suamend pleadings after judgment, preme court, and the cause remanded, within the sound discretion of the such party asked leave to amend his court: O'Comell ». Cotter, 44-48. pleadings so as to allege that the

After a referee's report has been property had been converted by the filert, a party ought not to be allowed other party, and asking for the reto file an annendelp'tition tendering a turn of the property, or judgment new issu?, and have the case re-sub- therefor, it was held error to refuse mitted to the referee without showing leave to so amend: Jones v. Cíark, proper excuse for the delay: Newell 31-497. r. Mahaska Co. Sarings Bank, 51-178. In an action pending on appeal

Where leave to amend was asked from a justice of the peace, new or just as the jury was called, fir the amended pleadings cannot be filed as purpose of interposing a cross action, matter of right, but may be allowed and was refused, helil, that such rul- upon proper terms and a showing of ing was not erroneous: Brockman v. cause for failure to plead below: Berryhill, 16-18.

Dunton v. Thorington, 15–217; StanWhere an amendment to an answer ton v. Warrick, 21-76; May v. Wilwas offered after defendant had made son, 21-79; Warren 1. Scott, 32-22; his argument and submitted his Pingt'. Cockyme, 37-211; Anlae 1. cause to the jury, and it did not ap- | Zangs, 41-5:31; Clour v. Murphy, pear but that it might have been filed 52-69.); but they cannot be filed as sooner, held, not error to strike it matter of right: Packard v. Snell, from the files: Bays v. Herring, 30-80. 51-236.

Leave to file, even upon cause shown, To allow an amendment on a sec- lis a matter of discretion: Grisuold v. onl irial withurawing a denial pre- Boumam, 40–367. viously made by th3 pleading, and! PRACTICE: An amendment filed thus securing for the party so amend without leave of court, or notice to ing, the opning and closing, hell, the opposite party, may be stricken not erroneous: Bates 1. Bates, 27 from the files on motion. Amendi110.

ment can only be maile by leave of It is too late to amend after a cause court, except as specified in $ ::617: is pe ding in the appellate tribunal: Allen 1. Biduell, 35–46. But an Johnson 1. Chaplin. 22-570.

amenilment filed without leava Aparty may be alloweil to amend should not be stricken out where it after the case has been appealed to would be error to refuse leave to fi!. the supreme court, and been sent it: Miller v. Perry, 39-301. back for a new trial: Bebb v. Preston. The filing of an amendment which :-:32); Scott v. County of Chickasalo, takes the opposite party by surpr se, J: 47.

so that he cannot go to trial, may be Where a demurrer is overruled in a good ground for continuance, but the court below, and the ruling is re- the amendment (an not for that reaVersed on appeal, final judgment can son be stricken from the files: Snelliker not be rendered in the supreme court ; v. Poorbaugh, 29-188. but the party whose pleading is thus! The suflicier.cy of an amenilment assailed, has a right to amend in ihe cannot properly be questioned by court below: Ware v. Thompson, 29 way of resistance to a motion for -6).

leave to file; but if such motion be After trial of an equity cause de overruled, the supreme court, on apnoro on appeal and the filing of a peal from such decision, will look into procedendo in the court blow, it is the sufficiency of the amendment to error to allow the filing of an amended see whether the refusal to allow it pleading setting up matter which worked any prejudice to the party: might have been set up before the The Stute v. Mayor, etc., of k'cukuk, trial: Reed v. Howe, 44-300 ; Sexton 18-388.

« SebelumnyaLanjutkan »