Babcock v. Hamilton

Supreme Court of Iowa

Babcock v. Hamilton

21 N.W. 33, 64 Iowa 558

DecidedOctober 22, 1884

StatusPublished

This text of 21 N.W. 33 (Babcock v. Hamilton) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Babcock v. Hamilton, 21 N.W. 33, 64 Iowa 558 (iowa 1884).

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Opinion

Rothrock, Ch. J.

The judgment against the defendant, Hamilton, was rendered on the twenty-second day of April, 1878. The conveyance which it is sought to impeach was executed on the twentieth day of February, 1878. It does not appear from the averments of the petition, nor from the evidence in the case, that Nancy Hamilton was indebted to the plaintiffs when the conveyance was made. And the record does not present a case which would authorize a decree setting aside the conveyance at the instance of subsequent creditors.

It is claimed by counsel for appellee that, as the petition was not attacked by motion or demurrer, all objection thereto must be deemed to have been waived. This, may be true as a question of pleading, but a failure to make such objection was no waiver of the proofs necessary to establish the cause of action. ■ Under the allegations of the petition, and in view of the other evidence in the ease, it was absolutely essential [560]*560that the plaintiffs should prove that they were creditors of the defendant,' Hamilton, at the time the conveyance was made, and without such proof they were not entitled to a decree.

Reversed.

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Rothrock, Ch. J.

The judgment against the defendant, Hamilton, was rendered on the twenty-second day of April, 1878. The conveyance which it is sought to impeach was executed on the twentieth day of February, 1878. It does not appear from the averments of the petition, nor from the evidence in the case, that Nancy Hamilton was indebted to the plaintiffs when the conveyance was made. And the record does not present a case which would authorize a decree setting aside the conveyance at the instance of subsequent creditors.

It is claimed by counsel for appellee that, as the petition was not attacked by motion or demurrer, all objection thereto must be deemed to have been waived. This, may be true as a question of pleading, but a failure to make such objection was no waiver of the proofs necessary to establish the cause of action. ■ Under the allegations of the petition, and in view of the other evidence in the ease, it was absolutely essential [560]*560that the plaintiffs should prove that they were creditors of the defendant,' Hamilton, at the time the conveyance was made, and without such proof they were not entitled to a decree.

Reversed.

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Bluebook (online)

21 N.W. 33, 64 Iowa 558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/babcock-v-hamilton-iowa-1884.