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Sec. 2720. When the allegations of a pleading are so indefin- When pleading

nomade more 1*. ite and uncertain that the precise nature of the charge or defense citie. is not apparent, the court may, on motion, require it to be made R. 2918. more definite and certain. No pleading which recites or refers to a contract shall be deemed sufficiently specific unless it states whether it is in writing or not. Such motion shall point out wherein the pleading is not sufficiently specific or it shail be disregarded, and if the reason for such demand exists outside of the pleadings, the motion must state the same and be supported by affidavit.

A motion for more srecific state- / murrer: Turner v. First Nat'l Bank, ment will lie for indefiniteness in the Keokuk, 26-562. statement of facts, etc., but not for Any error in overruling the motion indefinitalss in the prayer for judg- cf the defendant to have petition inent: Siberling r. Dujardin, :3 -103. made more specific, is waived by an

Where a matter of fact is allerudswering: Coakley v. McCarty, 34in the alternative, the remedy for the 10.); Kline v. K. C. St. J. & C. B. defect is by motion and not by de- 'R. Co., 50-656. SEC. 2721. The title of a cause shall not be changed in any of Title of cause

not chan: . its stages of transit from one court to another.

R32919. Sec. 2722. Matters of which judicial notice is taken need not Judicial nvice. be stated in a pleading.

R. 8 2950. Sec. 2723 When a party claims by conveyance, he may state Conveyane it according to its legal effect or name.

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R. & 29 2. Sec. 2721. It shall not be necessary to allege the commence- Estate: how ment of either a particular or a superior estate, unless it be pleas.

R.2 2934. essential to the merits of the case.

Sec. 2725. In actions for injuries to goods and chattels, their same as to kind or species shall be alleged.

goods.

R. 2936. Sec. 2726. In actions for injuries to real property, the petition same as to shall describe the property, and when the injury is to an incor- real property.

R. & 2958. poreal hereditament, shall describe the property in respect of which the right is claimed, as well as the right itself, either by the numbers by which the property is designated in the national survey, or by its abuttals, or by its courses and distances, or by any name which it has acquired by reputation certain enough to identify it. Sec. 2727. When the party intends to prove malice to effect Malice.

R. 2 2909. damages, he must aver the same.

Section applied: Johnson v. C. R.II. & P. R. Co., 51–25.

Sec. 2728. In an action on a bond with conditions, the party Bond: breaches suing thereon shall notice the conditions and allege the facts con- R: ? 2960. stituting the breaches relied on.

C. '31, 2 1813. The condition should be noticed in' To constitute a sufficient statement the pleailing itself. Attaching a copy of the breach relied on, the non-payof the bond to the pleading as an ex- ment of the dam ges provided for bibit is not a compliance with the re- should be alleged: Ibid. So held, in quirements of the section: Ryder v. i case of an action on an attachment Tomas, 32-56.

T bond: Horner v. Harrison, 37-378. Sec. 2729. A party shall not be compelled to prove more than Extent of prof. is necessary to entitle him to the relief asked for, or any lower degree Prof. incluiled therein, nor more than sufficient to sustain his defense.

Section applied: Swezey v. Collins, I trell, 43-194; Kearney v. Fitzger li, 515-5-9; Supiler 1. Reno. 38-39: 43-58; Moseley 0. Shattuck, 4:3-jtu, Little r. McGuire, 33–360, :;63; Knott 13. 1. Tincher, 39-6.8; Eduards v. Cot-|

Instrument re

SEC. 2730. When a written instrument is referred to in a When written pleating, and the same, or a copy thereof, is incorporated in or atferred to in tached to such pleading, the signature thereto, and to any enplending deined genu

dorsement thereon, shall be deemed genuine and admitted, unless inc.

the person whose signature the same purports to be, shall, in a R. 2 2967. 90. A. ch. 28. pleading or writing filed within the time allowed for pleading, B: G. A. ch. 1

167, denying the genuineness of such signature under oath. If such € 19.

instrument be not negotiable, and purport to be executed by a person not a party to the proceeding, the signature thereto shall not be deemed genuine or admitted, if a party to the proceeding, in the manner and within the time before mentioned, state unler oath that he has no knowledge or information sufficient to enable him to form a belief as to the genuineness of such signature. The person whose signature purports to be signed to such instrument, shall, on demand, be entitled to an inspection thereof.

Under this section a denial of the I port such denial by proot, witho:.t execution of the instrument (Loomis making it under oath : Lyon r. Bunn, V. Metcalf, 30–352), or a denial of 6-48; Terhune v. Henry, 1:3-99. knowledge or information as to sion- The denial under oath, conteming the instrument (Ilali '. Etna plateil in this section, mu-t be ly the M'f'y Co., 30-215), or that defendant party whose signature it purports to ever signed or executed an instrument, be: Walker 1. Sleight, 3-310; und of such tenor and etfect, will not be a denial by the maker, of the genuinesufficient io put in issue the genuine-ness of t e signature of an indorser, is ness of the signature: Douglass e. not sufficient to throw the burden of Motheny, 3.3-112; but under a denial proving the genuineness of such sirof the execution, d fendant may in- nature upon the party claiming theretroduce evidence that the instruinent, under: Robinson v. Lair, 31-9. by reason of alterations or otherwise, The section does not apply to an is not such as he signed, without hav- administrator suing on the note of ing denied the genuineness of the lis decedent, and a denial by him of signature under oath: Lake v. Cruik. the execution puts in is ue the genushank, 31-395.

imeness of the signature: Ashworth The object of the statute was to 1. Grubbs, 47–353. change the burden of proof in re- When a signature is thus denied spect to the execution of the instru- under oath. while the defendant must ment, and cast it upon defendant, but introduce some evidence to support defendant is not estoped from con- bis defense and overtbrow thprima troverting the execuiion of the in-furie case made by the writing, yet, strument, or his signature thereto, by when he has done so, the onus proproot, where he has denied the execu- bandi as to the genuineness of the tion in his answer : Sunkey v. Trump, signature rests upon plaintiff: F. & 35–267 ; and defendant may, by an- 1. Bunk 1. Young, :36-44. swer not under oath, deny the genu. This section is applicable in case of ineness of his signature and support city warrants: Clark v. City of Des such allegation by proper evidence, Voines, 1-199, 227, and also in case the burden of vroof being upon him: of county warrants: Clark v. Polk Brayley v. Hedges, 52-623. Soi Co., 1-248; also in case of a ded under chapter 108, Acts of 18:13. of a corporation, purporting to be providing that due execution would properly signed and sealed: Bla kbe presumed, unless specifically deshire v. Iowa Homesteud Co., 39nied under o:lth, held, that a party | 624. might deny the execution, and sup-|

Sec. 2731. Either party may be allowed, on motion, to make a fiipplemental supplemental petition, answer, or reply, alleging facts material to piea iing de

le the case, which have happened or have come to his knowledge fined,

968. since the filing of the former pleading; nor shall such new ploadC. '51, 8 1749.

ing be considered a waiver of former pleadings.

Where defendant alleged, by way I was only to become mature on a conof defense, that the claim sued ontingency which had not happened,

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held, that plaintiff might, in a sup- Iv. Mitchell, 15–194.
plemental perition, set up the hap- ' Section applied: Hymes v. S. A. &
penmg of such a contingency, atter D. R. CO., 38–258.
suit was brought: City of Davenport |

SEC. 2732. Matter in abatement may be stated in the answer Matter in or reply, either together with or without causes of defense in bar, abatement:

how plead. and no one of such causes shall be deemed to overrule the other; R. & 2969. nor shall a party after trial, on inatter of abatement, be allowed in the same action to answer or reply matter in bar.

That defendant has been garnished panding is set up, it should not be for a debt due the assignor of plain- regarded if the other action is distiff before assignment, it no judy- missed before the court has determ. nt has yet been rendered in the wined the sufficiency of the plea garnishment proceedings, is pleadable (overruling Rawson r. Guiberson, 6in abalement and not in bar: Clise 507): Rush v Frost, 49–183. v. Freeborn, 27-280.

As to form of judgment on matter Where a plea of another action lin abatement, see $ 2851. Sec. 2733. Any defense arising after the commencement of Subsequent de

fenses; how any action, shall be stated according to the fact, without any piead. formal commencement or conclusion, and any answer which does R. & 2970. not state whether the defense therein set up arose before or after action, shall be deemed to be of matter arising before action. Sec. 2:34. Whenever two or more actions are pending in the Consolidation

of actions. same court which might have been joined, the defendant may, on RISUOTIS. motion and notice to the adverse party, require him to show cause why the same shall not be consolidated, and if no sufficient cause be shown the same shall be consolidated.

The same rason and necessity ex- to consolidate actions has long been ists for allowing the relief here con-exercised, in the absence of any extemplated, in a proper case, upon press statutory directions: Viele v. motion of plaintiff, as upon that of Germania Ins. Co., 26–9, 46. defendant. The power of the court | Sec. 2735. If an original pleading he lost or withheld by any Lost

Lost pleading. cne, the court may order a copy thereof to be substituted. R. 2008 Sec. 2736. No record shall be amended or impaired by the recorden

C''31, 2 1760. clerk or other officer of the court, or by any person without the not be altered.

R. 2 2984. order of such court, or of some court of competent authority.

[The word "without,” in the second line, as in the original, is “ with” in the printed code.]

CHAPTER 9.

OF TRIAL AND JUDGMENT.

SECTION 2737. Issues arise in the pleadings, where a fact or Jesues: lav conclusion of law is maintained by one party and controverted by and fret.

R. & 2003. the other. They are of two kinds:

1. Of law; 2. Of fact. Issues arising in special proceed- | ary or equitable proceeding, and the ings must be tried either as an ordin-1 mode of trial will be determined by

assigning the proceeding to which-, Sisters of Visitation v. Glass, 45–
ever class it appropiately belongs to: 154.

Sec. 2738. An issue of fact arises:
Of fact.
R. 9 & 2991, 2995.

1. Upon a material allegation of fact in the petition denied by the answer;

2. Upon a material allegation of new matter presented in the answer and denied by the reply;

3. Upon allegations of new matter in the reply, which shall be considered as controverted by the opposite party without further pleading. Any other issue is one of law.

ISSUES-HOW TRIED.

SEC. 2739. Issues of law must be first tried. A trial is a judiTrial defined. cial examination of the issues in an action whether they be issues R. 1926-7. C. 51, 1770. of law or of fact.

Sec. 2740. Issues of fact, in an action in an ordinary proceedIssues: how ing, must be tried by jury, unless the same is waived. All other triedi.

issues shall be tried by the court, unless a reference thereof is R 9999 C. 51, & 1772. made.

An issue of fact in an equitable pro- ' tion: Shontz v. Erans. 40-1:39. ceeding is to be tried by the court and The right to trial by jury is not cannot be submitted to a jury, even inalienable, but may be waived or as formerly provided under Rev. S forfeited : Wilkins v. Treynor, 142999 for the pui pose of intorming the 391. conscience of the court. The refer- In equitable actions triable to the ence contemplated in this section is court, a reference may be marle, even not one to a jury but such an one as without consent. The parties are is provided for in $ $ 2815 et seg, not entitled, as of right, to a trial by (overruling in this respect: Sherwood jury: The State v. Oruiy, 25–280.

. Sherwood, 44-192, and Houe Ma- And as to the right of trial by jury, chine Co. v. Wooley, 50-549;) Ilobart generaliy, see Const., art. 1, S9, and v. Hobart, 51-312.

notes. It is not error in the court to over- A party in defuult is not entitled rule motion of a party to submit to a to a jury to assess amount of recovjury certain issues in an equitible ac- ery. See $ 2872 and notes.

Sec. 2741. All issues of fact in ordinary actions shall be tried Method of trial upon oral evidence taken in open court, except that depositions in ordinary may be used as now provided by law; and upon appeal no eviactions: appeal.

dence shall go to the supreme court except such as may be necesR. 2 2999.

sary to explain any exception taken in the cause; and such court shall hear and try the case only on the legal errors so presented.

(A substitute for the original section; 18th G. A., ch. 83.] [The following decisions were allsion or exclusion of evidence, the recmade before the repeal of the original ord need not contain all the evidence section, which read as follows: "All in the case, but need only show the issues of fact, whether ordinary or purport of the evidence passed upon: equitable, shall be tried upon oral Smith r. Johnson, 4.-308. evidence taken in open curt, except The supreme court, on appeal, will that depositions may be used as now not consider any question not raised provided in an action by ordinary in the court below: McNaught v. procer dings; and, upon appeal, no C. & N. W R. Co., 30–336; Trayer evidence shall go to the supreme v. Reeder, 4.5-272. court, excpt such as may be neces- | Special proceedings (such as prosary to explain any exception taken ; bate of wills, etc.), are triable in the and such court shall try only the legal supreme court upon legal errors daly errors duly presented.')

assigned, and not de novo: Ross 1). To warrant the supreme court in McQuiston, 45–145; Sisters (f Visitareviewing errors of law in the admis- tion v. Glass, 45-154.

The rule is to try all causes on oral mothod (as provided in that section) evidence, and, in the supreme court, the supreme court could only consider on exceptions and errors duly as questions of law properly assigned, signed, and if trial de noro on ap- as in actions by ordinary proceedings: peal is desired, the proper steps to Snowden v. Snowden, 23-457. secure it must be taken: Finch v. As to the meaning of the expression, Hollinger, 47-173, 175.

“open court,” as here used, see HoUnder Rev. $ 2999, held, that in bart v. Hobart, 45-501, 504. equity actions tried by the second !

Sec. 2742. But in equitable actions wherein issue of fact is In equitable joined, all the evidence offered in the trial shall be taken down in actions.

dence taken in writing, or the court may order the evidence or any part thereof writing: depoto be taken in the form of depositions, or either party at pleasure 1, 22999.

sitions : appeul. may take his testimony or any part thereof by deposition. All the evidence so taken shall be certified by the judge in term or vacation, be made a part of the record and go on appeal to the supreme court, which shall try the case anew.

[A substitute for the original section; 17th G. A., ch. 145.] [The original section was as follows: ) pearance term is not the trial term, "But in equitable actions, other than even in actions for foreclosure, diactions to foreclose mori gages or in vorce, etc.; but if the evidence is struments in writing whereby liens ordered to le taken down in writing, or charges on property are created, there need be no continuance, unless not including trusts, to enforcem for cause, and the appearance term chanics' liens, or for divorce or nulli- is the trial term for those classes of ty of marriages, if any party shall, equitable actions: Holbrook v. Fahey, at any time during the appearance 51-406. term, move the curt for a trial upon As TO RIGHT OF TRIAL DE NOVO: the written evidence, the court shall While the Legislature can not tatie either order all the evidence to be away the right of trial de noco in the taken in the form of deposition, or supreme court oil appeal in equity shall cause all the evidence offered on cases, yet the manner of its exercise the trial to be taken down in writing, may be regulated as is here done: to be certified by the judge and made ! Richards v. Hintrager, 45-253. a part of the record according to the The constitution guarantees the requirements of the motion. In light of trial de noro, on appeal to the either of such cases, all the evidence supreme court, and this section, in so 80 taken shall go on appeal to the far as it did not allow a trial de noro supreme court, which shall try the in divorce and foreclosure cases, wis caso anew."

unconstitutional: She: wood v SherDECISIONS UPON TIIE SUBSTITUTE: wool, 44-192; Howe Machine Co. v. This act does not affect proceedings Woolly, 50-549. on appeal from a judgment rendered Under Rev. $ $ 2999, 3000, held, before the act took effect, although that in an equitable action tried by the appeal was not taken until after the first method (on written evidence), that ime: Simondson v. Simond son, the supreme court would try the case 50-110; Trebon v. Zuraff, 50–180; on appeal nie noro, and that alleged Joliet Iron and Steel Co. v. C, C. & errors in interlocutory proceedings W. R. Co., 50-455.

would not be considered, and that in Whether, under the substitute, such cases an assignment of errors chancery cases may be tried in the would not be necessary: Hackworth supreme court, upon errors, quaere; in. Zoilars, 30-4:33; but that where but the substitute does not afiect the an equitable action was tried by the method of trial in the court below, in second method (in the same manner cases commenced before its enact- | as a law action), although it was ment: Schmeltz v. Schmeltz, 52- such an action as might have been 512.

tried by the first method, it would Te substitute does not repeal the l be heard in the supreme court only provisions of SS 2744, 2745, but when upon errors: Lynch v. Lynch, 28an oriler is made to take the evidence 326; Mallory v. Luscombe, 31-269; in the form of depositions, the cause and that to bring up for review an is necessarily continued, and the ap-lequitable case, triable by the second

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