SEC. 2720. When the allegations of a pleading are so indefin- When pleading ite and uncertain that the precise nature of the charge or defense made more p is not apparent, the court may, on motion, require it to be made R. ĝ 2948. 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 shall 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 specific 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 indefiniteness in the prayer for judgment: Siberling v. Dujardin, 3-403. Where a matter of fact is alleged in the alternative, the remedy for the defect is by motion and not by de Any error in overruling the motion of the defendant to have petition made more specific, is waived by answering: Coakley v. McCarty, 34105; Kline v. K. C. St. J. & C. B. R. Co., 50-656. SEC. 2721. The title of a cause shall not be changed in any of its stages of transit from one court to another. SEC. 2722. Matters of which judicial notice is taken need not be stated in a pleading. Title of cause not changed. R 22919. Judicial notice. R. 2950. how picad. R. 22952. SEC. 2723 When a party claims by conveyance, he may state Conveyance it according to its legal effect or name. SEC. 2124. It shall not be necessary to allege the commence- Estate: how ment of either a particular or a superior estate, unless it be plead. R. ¿ 2954. essential to the merits of the case. goods. R. 22958. SEC. 2725. In actions for injuries to goods and chattels, their same as to kind or species shall be alleged. SEC. 2126. 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. 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. R. 2 2959. SEC. 2727. When the party intends to prove malice to effect Malice. damages, he must aver the same. Section applied: Johnson v. C. R. I. & P. R. Co., 51-25. of. 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. The condition should be noticed in the pleading itself. Attaching a copy of the bond to the pleading as an exhibit is not a compliance with the requirements of the section: Ryder v. Thomas, 32-56. To constitute a sufficient statement of the breach relied on, the non-payment of the damges provided for should be alleged: Ibid. So held, in case of an action on an attachment bond: Horner v. Harrison, 37-378. C. '51, 1813. required. SEC. 2729. A party shall not be compelled to prove more than Extent of pro¿f is necessary to entitle him to the relief asked for, or lower degree any included therein, nor more than sufficient to sustain his defense. Section applied: Swerzey v. Collins, |trell, 43-194; Kearney v. Fitzger Id, 6-5-9; Snyder v. Reno. 33-329: 43-580; Moseley v. Shattuck, 43-549, Little r. McGuire, 38–560, 563; Knott | 543. t. Tincher, 39-6.8; Edwards v. Cot instrument re- deemed genu- 9G. A. ch. 28. È 19. SEC. 2730. When a written instrument is referred to in a When written pleading, and the same, or a copy thereof, is incorporated in or attached to such pleading, the signature thereto, and to any endorsement thereon, shall be deemed genuine and admitted, unless the person whose signature the same purports to be, shall, in a pleading or writing filed within the time allowed for pleading, denying the genuineness of such signature under oath. If such 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 under 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. port such denial by proof, without making it under oath: Lyon r. Bunn, 6-48; Terhune v. Henry, 13-99. Under this section a denial of the execution of the instrument (Loomis v. Metcalf, 30-382), or a denial of knowledge or information as to sign- The denial under oath, conteming the instrument (Hali r. Etna plated in this section, must be by the M'f'g Co., 30-215), or that defendant party whose signature it purports to ever signed or executed an instrument, be: Walker v. Sleight, 3-310; and of such tenor and effect, will not be a denial by the maker, of the genuinesufficient to put in issue the genuine-ness of the signature of an indorser, is ness of the signature: Douglass v. not sufficient to throw the burden of Matheny, 35-112; but under a denial proving the genuineness of such sizof the execution, defendant may in- nature upon the party claiming theretroduce evidence that the instrument, under: Robinson v. Lair, 31–9. by reason of alterations or otherwise, is not such as he signed, without hav-administrator suing on the note of ing denied the genuineness of the signature under oath: Lake v. Cruikshank, 31-395. | The section does not apply to an his decedent, and a denial by him of the execution puts in issue the genuneness of the signature: Ashworth v. Grubbs, 47-353. When a signature is thus denied under oath. while the defendant must introduce some evidence to support his defense and overthrow the prima facie case made by the writing, yet, when he has done so, the onus probandi as to the genuineness of the signature rests upon plaintiff: F. & M. Bink v. Young, 36-44. The object of the statute was to change the burden of proof in respect to the execution of the instrument, and cast it upon defendant, but defendant is not estopped from controverting the execution of the instrument, or his signature thereto, by proof, where he has denied the execution in his answer: Sankey v. Trump, 35-267; and defendant may, by answer 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, Moines, 1–199, 227, and also in case the burden of roof being upon him: of county warrants: Clark v. Polk Brayley v. Hedges, 52-623. Sc Co., 1-248; also in case of a deed under chapter 108, Acts of 1893. of a corporation, purporting to be providing that due execution would properly signed and sealed: Bla kbe presumed, unless specifically de-shire v. Iowa Homestead Co., 39nied under oath, held, that a party 624. might deny the execution, and sup SEC. 2731. Either party may be allowed, on motion, to make a Supplemental supplemental petition, answer, or reply, alleging facts material to the case, which have happened or have come to his knowledge since the filing of the former pleading; nor shall such new pleading be considered a waiver of former pleadings. pien ling de- C. '51, 1749. Where defendant alleged, by way was only to become mature on a conof defense, that the claim sued on tingency which had not happened, held, that plaintiff might, in a supplemental petition, set up the happening of such a contingency, after suit was brought: City of Davenport v. Mitchell, 15-194. 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 matter of abatement, be allowed in the same action to answer or reply matter in bar. That defendant has been garnished for a debt due the assignor of plaintiff before assignment, if no judgm nt has yet been rendered in the garnishment proceedings, is pleadable in abatement and not in bar: Clise t. Freeborn, 27-280. pending is set up, it should not be As to form of judgment on matter fenses: how SEC. 2733. Any defense arising after the commencement of Subsequent deany action, shall be stated according to the fact, without any plead. 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. of actions. SEC. 2734. Whenever two or more actions are pending in the Consolidation same court which might have been joined, the defendant may, on R. 22980. 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 reason and necessity ex- | to consolidate actions has long been ists for allowing the relief herc 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., 28–9, 46. defendant. The power of the court R. 2 2982. SEC. 2735. If an original pleading be lost or withheld by any Lost pleading. one, the court may order a copy thereof to be substituted. SEC. 2736. No record shall be amended or impaired by the clerk or other officer of the court, or by any person without 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.] the not be altered. R. 22984. CHAPTER 9. OF TRIAL AND JUDGMENT. SECTION 2737. Issues arise in the pleadings, where a fact or Issues: law conclusion of law is maintained by one party and controverted by and fact. 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- mode of trial will be determined by R. 22993. Of fact. assigning the proceeding to which- Sisters of Visitation v. Glass, 45ever class it appropiately belongs to: | 154. SEC. 2738. An issue of fact arises: 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 of law or of fact. R. 472996-7. C. '51, 1770. Issues: how in ordinary SEC. 2740. Issues of fact, in an action in an ordinary proceeding, must be tried by jury, unless the same is waived. All other issues shall be tried by the court, unless a reference thereof is made. An issue of fact in an equitable proceeding is to be tried by the court and cannot be submitted to a jury, even as formerly provided under Rev. § 2999 for the purpose of informing the conscience of the court. The reference contemplated in this section is not one to a jury but such an one as is provided for in §§ 2815 et seq. (overruling in this respect: Sherwood v. Sherwood, 44-192, and Howe Machine Co. v. Wooley, 50-549;) Hobart v. Hobart, 51-512. tion: Shontz v. Evans. 40-139. The right to trial by jury is not inalienable, but may be waived or forfeited: Wilkins v. Treynor, 14391. In equitable actions triable to the court, a reference may be made, even without consent. The parties are not entitled, as of right, to a trial by jury: The State v. Orwig, 25-280. And as to the right of trial by jury, generally, see Const., art. 1, §9, and notes. It is not error in the court to over- A party in default is not entitled rule motion of a party to submit to a to a jury to assess amount of recovjury certain issues in an equitable 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 may be used as now provided by law; and upon appeal no evidence shall go to the supreme court except such as may be necessary 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 all | sion 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, 45–308. evidence taken in open court, except that depositions may be used as now provided in an action by ordinary proces dings; and, upon appeal, no evidence shall go to the supreme court, except such as may be necessary to explain any exception taken; and such court shall try only the legal errors duly presented."] To warrant the supreme court in reviewing errors of law in the admis The supreme court, on appeal, will not consider any question not raised in the court below: McNaught v. C. & N. W R. Co., 30-336; Trayer v. Reeder, 45-272. Special proceedings (such as probate of wills, etc.), are triable in the supreme court upon legal errors daiy assigned, and not de noro: Ross . McQuiston, 45-145; Sisters (f Visitation v. Glass, 45-154. dence taken in sitions: appeul. 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: eviwriting, 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 R, 2999. 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. AS TO RIGHT OF TRIAL DE NOVO: [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 mortgages or in- vorce, etc.; but if the evidence is struments in writing whereby liens ordered to be taken down in writing, or charges on property are created, there need be no continuance, unless not including trusts, to enforce m- 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 snall, equitable actions: Holbrook v. Fahey, at any time during the appearance | 51-406. term, move the court for a trial upon the written evidence, the court shall either order all the evidence to be taken in the form of deposition, or shall cause all the evidence offered on the trial to be taken down in writing, to be certified by the judge and made a part of the record according to the requirements of the motion. In either of such cases, all the evidence so taken shall go on appeal to the supreme court, which shall try the case anew."] While the Legislature can not take The constitution guarantees the DECISIONS UPON THE SUBSTITUTE: This act does not affect proceedings on appeal from a judgment rendered before the act took effect, although the appeal was not taken until after that time: Simondson v. Simondson, 50-110; Trebon v. Zuraff, 50-180; Joliet Iron and Steel Co. v. C. C. deirors in interlocutory proceedings W. R. Co., 50-455. Whether, under the substitute, chancery cases may be tried in the supreme court, upon errors, quære; but the substitute does not affect the method of trial in the court below, in cases commenced before its enactment: Schmeltz v. Schmeltz, 52 512. Te substitute does not repeal the provisions of §§ 2744, 2745, but when an order is made to take the evidence in the form of depositions, the cause is necessarily continued, and the ap Under Rev. § § 2999, 3000, held, would not be considered, and that in |