Dunton v. Thorington

15 Iowa 217, 1863 Iowa Sup. LEXIS 125

Opinion

Lowe, J.

The question, whether the motion to dismiss the appeal, in this case, should have prevailed, for the reason specified, it is not important to determine, as we have but little difficulty in disposing of the case on the merits of the particular question upon which the cause has been brought into this Court,. namely, whether the Court below erred in refusing, under the circumstances mentioned, to strike from the files the said rejoinder.

It is a question of some doubt whether, under the statute, a rejoinder was necessary to complete the issue. If not, then, of course, there was no prejudice to appellant in refusing to strike it from the files. If it is necessary, then, under the circumstances, we are satisfied that the Court did not abuse its discretion in allowing the same. While the filing of a further pleading may not be a matter of right in appéal cases, we are satisfied that in some cases, upon proper terms, it may be permitted; and such permission will not be interfered with, unless it is clear that prejudice has resulted from such order. §§ 2917, 2895, 8208 Revision of 1860.

Affirmed.