Frink & Co. v. Whicher

4 Greene 382

• Court: Supreme Court of Iowa
• Decided: July 1, 1854
• Status: Published

Opinion

Opinion by

Greene, J.

This suit was commenced before a justice of the peace, by John Frink and company, against the defendant, for cutting and mutilating a hack. Defendant recovered. Plaintiffs appealed to the district court, where the defendant’s motion to dismiss was granted, on the ground of a variance between the petition and notice. This motion to dismiss was-not made until after a change of venue, a continuace of the cause, and other proceedings in which defendant appeared. As the cause had been tried on the merits before a justice of the peace, .an appeal taken, and several appearances in the district court, before the motion was made, the objection clearly came too late. If there was a misjoinder of parties, it should have been taken advantage of, before trial. But in this case there appears to have been a variance. The petition is the foundation of the action, and the notice should conform to it. In case of variance, the discrepancy should fall upon the noticed Hence, such discrepancy is cured by appearance.

Smith, McKinlay and Poor, for appellant W. Q. Woodward, for appellee.

Besides, on appeal, all such errors and irregularities are to be disregarded; Code, § 2313.

Judgment reversed.