Ayres v. Campbell

3 Iowa 582

Opinion

Woodward, J.

[1] —

As this cause is now presented to the court, the plaintiff and appellant assigns for error, that the court overruled the plaintiff’s demurrer to apart of the defendant’s answer. We shall not enter, in detail, into these causes of demurrer, but will only remark that the matters are probably not well pleaded in manner, but would seem to be good, if sustained, in substance. They are thus passed, because the plaintiff has pleaded over and has gone to trial. If he wished to save the matter of the demurrer, he should have stood upon it. This practice does not preclude a -party from filing an answer or replication, with his demurrer, but if he designs to adhere to Ms demurrer, he must either withdraw Ms other pleadings, or cause the record to show that he abides by the demurrer. - '

The other error assigned, is upon the admission of the same Crews to testify. There is no bill of exceptions, but there is a certificate of the clerk and an affidavit of the plaintiff’s attorney, that one was taken, and signed and filed, and that it is lost or destroyed. An affidavit of the defendant’s attorney, impliedly admits that there was such a bill, but avers that the said bill stated that before said Crews testified, he produced to the court a written release from said James Campbell, by which said Campbell released Mm from all and every liability, indebtedness, or cause of action, relating to the sale and transfer of said lot mentioned in the petition and answer, and every matter relating thereto. Taking these affidavits as sufficient1 to show the existence once, and the loss of a bill of exceptions, the cause is brought to the point of the adjudication in 1 Iowa, 212, and such release appears to us to restore the competency of Crews. Therefore, the judgment of the District Court is affirmed.

Wright, 0. J., having been of counsel, took no part in the decision of this cause.