Errors disre garded. R. 22978. tle the party to An amended petition should refer | petition ($2731): Seevers v. Hamilton, to matters existing previously to the 11-66. commencement of the action. Those As to the right to amend in attach- SEC. 2690. The court must, in every stage of an action, disregard any error or defect in the proceeding which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect. A defect in the pleadings will not be regarded where no prejudice could have been wrought thereby: Coates v. City of Davenport, 9-227; Doniphan v. Street, 17-317. Section applied in case of a motion in arrest of judgment for defects in the petition not affecting the substantial rights of the parties: Smith v. Milburn, 17-30. An error will not be regarded on appeal unless the ruling is upon a material point: See § 2836. SEC. 2691. When either party shall amend any pleading or Does not enti- proceeding, the case shall not be continued in consequence thereof, unless the court shall be satisfied by affidavit or otherwise, that the adverse party could not be ready for trial in consequence of such amendment. But is the court is thus satisfied, a continuance may be granted to some day in the same term, or the next term of said court. C. 51, 1756. how made. R. 2983. The continuance here contemplated showing is made: The State v. should not be granted unless some Tieman, 39–474. SEC. 2692. All matters of supplement or amendment, whether Amendments: of addition or subtraction, shall not be made by erasure or interlineation of the original, or by addition thereto, but upon a separate paper which shall be filed and constitute, with the original, but one pleading. But if it be stated in such paper that it is a substitute for the former pleading intended to be amended, in that case, it shall be deemed such substitute, but the pleading superseded by the substitute shall not be withdrawn from the files. The petition and an amendmenting: Kostendader v. Pierce, 37-645. thereto constitute but one pleading, A pleading headed “third amendand the prayer for relief in the origi-ed answer," held, to be a substitute nal is applicable to the amendment: for previous answers, and not an Montgomery v. Shockey, 37-107. amendment to them: Bates v. Kemp, 12-99. An amendment to a pleading will not be considered as a substitute therefor: Cooley v. Brown, 35-475; and if the new pleading does not specify that it is a substitute, it will be construed with the original plead The pleading to which a substitute is filed still remains as a solemn admission of the facts therein stated by the party pleading them: Mulligan r. I. C. R. Co., 36-181, 189. May be an nexed to pleading. R. 2985. INTERROGATORIES. SEC. 2693. Either party may annex to his petition, answer, or reply, written interrogatories to any one or more of the adverse parties concerning any of the material matters in issue in the action, the answer to which, on oath, may be read by either party as a deposition between the party interrogating and the party answering. Neither the interrogatories nor the| Krekle, 22-399. answers thereto will. on demurrer, Section applied: Greene v. Woods, aid a defective pleading: Lane v.134-573. must state. SEC. 2694. The party answering shall not be confined to What response responding merely to the interrogatories, but may state any new R.256. matter concerning the same cause of action, which shall likewise be read as a deposition. Section applied: Guyer v. Figgins, | 37–517. sponding. SEC. 2695. The interrogatories shall be answered at the same Time of retime the pleading to which they are annexed is answered or 2957. replied to, unless they are excepted to by the adverse party; in which event the court shall determine as to the propriety of the interrogatories propounded, and which of them shall be answered, and within what time such answer shall be made. delay when. SEC. 2696. The trial of an action by ordinary proceedings, shall To cause no not be postponed on account of the failure to answer interrogato- R. ¿ 2958. ries, if the party interrogated is present in the court at the trial, so that he may be orally examined; nor in case of absence, unless an affidavit be filed showing the facts the party believes will be proved by the answers thereto, and that the party has not filed the interrogatories for the purpose of delay; whereupon, if the party will consent that the facts stated in the affidavit shall be considered as admitted by those interrogated, the trial shall not be postponed for that cause. Where interrogator.es were filed | ryhill, 25-289; and that where there by the defendant just before going was no affidavit made and the cause to trial, although the petition had was reached for trial, the counts been on file for several months, held containing the interrogatories were that they were, on motion, properly properly stricken out: Courtright v. stricken from the files: Jones v. Ber-Deeds, 37-503, 516. SEC. 2697. The party, in answering such interrogatories, shall Particularity distinguish clearly between what is stated from his personal R.255. required. knowledge, and what is stated from information or belief merely. An unqualified statement of a fact shall be considered as made of his personal knowledge. SEC. 2698. The answer to the interrogatories shall be verified How verified. R. 22999. by the affidavit of the party answering, to the effect that the statements in them made of his own personal knowledge are true, and those made from the information of others he believes to be true. Where there was no verification, | me." held, that the answer was not except the usual certificate of the no-sufficiently verified as here required: tary, "subscribed and sworn to before | Averill v. Boiles, 52–672. to answer when SEC. 2699. Where a party filing interrogatories shall also file Upon failure an affidavit that he verily believes the subject of the interrogato- taken as true. ries, or any of them, is in the personal knowledge of the opposite R. ¿ 2991. party, and that his answer thereto, if truly made from such knowledge, will sustain the claim of defense, or any part thereof, and the opposite party shall fail to answer therein within the time allowed therefor, or by the court extended, the claim or defense, or the part thereof, according to such affidavit, shall be deemed to be sustained, and judgment given accordingly. This section establishes a rule of party to judgment without trial, evidence, and the interrogatories un- and, after the filing of the affidavit, answered and the affidavit constitute the opposite party may dismiss: proof of the claim or defense, and on Perry v. Heighton, 26-451. trial, judgment should be given ac- Section applied: Sulley v. Wilson, cordingly; but, they do not entitle the 44-394. Answer com pelled. R. 992. SEC. 2700. The court may compel answers to interrogatories by process of contempt, and may, on the failure of the party to answer them, after reasonable time allowed therefor, dismiss the petition, or quash the answer of the party so failing. Time: sum: quantity: GENERAL PRINCIPLES OF PLEADING. SEC. 2701. In all cases in which a denial is made by answer or reply, concerning a time, sum, quantity, or place alleged, the place: denial party denying shall declare whether such denial is applicable to every time, sum, quantity, or place, and if not, what time, sum, quantity, or place, he admits. of. R. 2901. Time when SEC. 2702. When time is material, the day, month, and year, or when there is a continued act, its duration must be alleged. material: how When time is not material, it need not be stated, and if stated, need not be proved. stated. R. 2955. Place: allega tion. R. ¿ 2957. denial of alle gation. R. & 2914. Counts: divi sions num bered. R. 22902. bad pleading. SEC. 2703. It shall be necessary to allege a place, only when it forms a part of the substance of the issue. SEC. 2704. Under a denial of an allegation, no evidence shall be introduced which does not tend to negative some fact the party making the controverted allegation is bound to prove. SEC. 2705. The counts of the petition must be consecutively numbered as such, and so must the divisions of the answer as such, and of the reply as such. SEC. 2706. If any pleading do not conform to the foregoing Correction of requirements as to form, divisions, or numbering, or the distinct or separate statements of its cause of action or defense, the court may, on its own motion, or that of the adverse party, order the same to be corrected on such terms as it may impose. R. 2903. SEC. 2707. Sham and irrelevant answers and defenses may be Sham defenses stricken out on motion, upon such terms as the court may, in its discretion impose. stricken out. R. 2861. Statute: how plead. R. & 2926. SEC. 2708. In pleading a statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof. SEC. 2709. Every court of this state shall take judicial notice Rules of court. of the rules of any other court thereof, if published as directed R. 2927. by law. Inconsistent SEC. 2710. Inconsistent defenses may be stated in the same answer or reply, and when a verification is required, it must be defenses plead. to the effect that the party believes one or the other to be true, but cannot determine which. Inconsistent defenses may be stated to be construed as affecting a differ-in the same answer: Morgan v. ent and inconsistent defense: Barr v. Hawkeye Ins. Co., 37–359. Hack, 46-308, 310. SEC. 2711. Whenever a party claims a right derogatory from the general law, or when his claim is founded upon an exception of any kind, he shall set forth such claim or such exception particularly in his pleading. SEC. 2712. Every material allegation in a pleading not controverted by a subsequent pleading, shall, for the purposes of the action, be deemed true. But the allegations of the answer, not relating to a counter claim, and of the reply, are to be deemed controverted. But an alegation of value, or amount of damage, shall not be deemed true by a failure to controvert it. A party desiring to admit any allegatio s which by this section would be deemed controverted, may, at any time, file a written admission thereof. Material allegations, not denied, | are to be taken as true: Alexander r. Doran, 13–283; Bolander r. Atwell, 14-35; Singer Manuf. Co. v. Bilings, 39-47. But the failure to deny the allegations of a pleading only admits sach facts as are well pleaded: Alston r. Wilson, 44-130. A party is not bound or estopped by allegations as to value, made in his pleadings: Reilly v. Ringland, 39-106, 111. ter in avoidance of the matter so ad- Where the defendant answered, Allegations of value, or amount of damages, not to be deemed true: C. & S. W. R. Co. v. N. W. U. Packet Co, 38-377, 382; Zoe v. Nichols, 51-330. Under the Rev. (which di i not con-jury: Mana v. Howe, 9–546. template a reply confessing and avoiding new matters of defense set up in the answer), held, that where an admission of any averments of the answer as here provided, was filed, and the party intended to rely upon mat Allegations of an answer not relating to a counter claim, deemed controverted without reply: Davis v Payne, 45-194. As to when a reply is necessary, see notes to § 2665. lars. R. 2918. SEC. 2713. If a pleading is founded on an account, a bill of Bill of partienparticulars thereof must be incorporated into or attached to such pleading, verified as the pleading, and deemed a portion thereof, subject to be made more specific on motion, and shall define and limit the proof, but may be amended as other pleadings. The items of such bill of particula:s shall be consecutively numbered. These provisions as to bills of par- Failure to attach a copy of an acticulars are applicable in cases before count is ground for demurrer: See justices of the peace: McKenney v. § 2648, ¶ 6. Hopkins, 20-495. [Sixteenth General Assembly, Chapter 36.] petition taken SEC. 1. In all actions for money due upon an open account when the defendant has been personally served with the original In action on notice therein and the petition is duly verified, and where a bill open account of particulars of said account is incorporated into or attached to as true. the petition, if the defendant makes default or fails to controvert or deny the same or any of the items thereof, by pleading duly verified, the account or so much thereof as is not so controverted or denied, shall be taken as true and admitted. SEC. 2714. In pleading a judgment, or the determination of a court, or officer of special jurisdiction, it shall not be necessary to Judgment: state the facts conferring jurisdiction, but such judgment or R. 2921. determination may be stated to have been duly given or made. how plead. cedent. SEC. 2715. In pleading the performance of conditions precedent in a contract, it is not necessary to state the facts constitu- Conditions preting such performance, but the party may state, generally, that he R. 2922. duly performed all the conditions on his part. brought in a espacity. R. 2 2923. SEC. 2716. A plaintiff suing as a corporation, partnership, When action is executor, guardian, or in any other way implying corporate, representative partnership, representative, or other than individual capacity, need not state the facts constituting such capacity or relation, but may aver generally, or as a legal conclusion, such capacity or relation; and where a defendant is held in such capacity or relation a plaintiff may aver such capacity or relation in the same general way. Where a city has been incorporated | poration defendant, held, that such by special charter, its corporate exist- allegation was not within the provience need not be averred; but judi- sions of this and the following secial notice may be taken thereof. But tions, and was put in issueby a genwhen incorporated under general in-eral denial: Koons v. C. & N. W. R. corporation acts, its corporate exist- Co., 23-493. ence must be averred, and, waen properly put in issue, proved: Hard v. City of Decorah, 43-313. Where a school district sues, it need not set out the manner in which it was formed. The presumption is, that it was constituted properly: Fort Dodge Sch. Dist. v. Dist. Tp. of Wahkansa, 15-434. Where the plaintiff alleged a consolidation, etc., on the part of a cor A general denial does not put in issue the existence of a corporation and its capacity to sue: Blackshire v. Iowa Homestead Co., 39-6-4; nor the validity of the appointment of a guardian: Gates v. Carpenter, 43152; nor the power of a bank to purchase a note: Com. Bank of Keokuk v. King, 47-64; nor the existence of a municipal corporation: Stier v. City of Oskaloosa, 41-353. SEC. 2717. If either of the allegations contemplated in the Facts must be three preceding sections is controverted, it shall not be sufficient to do so in terms contradictory of the allegation, but the facts relied on shall be specifically stated. stated. R. 2925. Matters that inust be specially pleaded. R. & 2942. Irrelevant See notes to preceding section. SEC. 2718. Any defense showing that a contract, written or oral, or any instrument sued on, is void or voidable; or that the instrument was delivered to a person as an escrow, or showing matter of justification, excuse, discharge, or release, and any defense which admits the facts of the adverse pleading, but by some other matter seeks to avoid their legal effect, must be specially pleaded. Fraud relied upon as a defense | proper remedy in such case: Hynes must be specially pleaded: Root v. 1. S. A. & D. Railway Co. 38-258. Schaffner, 39-375. The statute of limitations must be specially pleaded: See notes to $2529. An agreement to arbitrate should be specially pleaded in abatement. A motion to dismiss the action is not the SEC. 2719. The court may, on motion of any person aggrieved thereby, cause irrelevant or redundant matter to be stricken from matter stricken any pleadings, at the cost of any party whose pleading contains out. R. 2946. them. up matter which does not constitute a defense, may be striken out on motion: Evans v. Robbins, 29-472. Certain matter in a pleading held redundant and properly stricken out: Davis v. C. & N. W. R. Co., 46-389. Where the whole statement of a cause of action is irrelevant or redundant matter, a demurrer would be proper, but if the petition is good in part and only objectionable in containing whole statements of irrelevant or redundant matter which cannot be It is not error to overrule a motion made the subject of a material issue, to strike out redundant matter, where such matter should be purged by it does not appear that the opposite motion: Bolinger v. Henderson, 23-party is aggrieved thereby: Cate v. 165; Douglass v. Bishop, 27-214. Gilman, 41-530. A paragraph in an answer, setting |
