Brooks v. Westover

21 N.W. 682, 65 Iowa 369

Opinion

Adams, J.

The defendant presents the case as triable de novo, and also upon assigned errors. We have to say that the case cannot be tried de novo, for the reason that the abstract does not purport to be an abstract of all the evidence. The defendant, we presume, relies in this respect upon a certificate of the judge, which purports to have been attached to the evidence. Bat that would only show that the evidence was made of record. It can show nothing in respect to the abstract. The plaintiff, after dismissing his petition, filed an unverified reply to the defendant’s verified counter-claim. The defendant moved to strike the reply from the files, on the ground that it was filed too late, and was not verified.. He also moved for default. The court overruled the motions, and the defendant assigns the ruling as error. In one view, perhaps, as a rule of. pleading, the motion should have been sustained; but we do not think that we should be justified in reversing, for that reason. We are unable to see how the defendant could ultimately recover. The damages claimed cannot properly be set up in a counter-claim. No action can be maintained for a malicious prosecution until the action complained of is ended.

Affirmed.