Gates v. Ballou

6 N.W. 701, 54 Iowa 485

• Court: Supreme Court of Iowa
• Decided: October 6, 1880
• Status: Published

Opinion

Seevees, J.

i. iNjweraíuüon oí*:SSO" practice. In addition to the matters above .stated, the petition alleged tbe mechanic’s lien was barred by tlie statute limitations, and there were other allegations "which have not been stated because they, under ppe view we tape 0f case, are deemed immaterial on this appeal. The answer fairly and sufficiently, we think, denies all the material allegations of the petition on which the right to a continuance of the injunction depends except one, and that is that a considerable portion of the claim had been paid at the time it was assigned to Barnard.

The only response to this allegation is that the defendant Wilson had no knowledge of any such payment. It is immaterial whether Wilson had such knowledge or not, as the material question was whether any portion of the claim had been paid to the original holder or Barnard. This not being denied in clear and distinct terms, the injunction should have been continued to the hearing. There is no doubt the plaintiff had the right to contest the amount due, and that, as .the claim was not negotiable, the defendant Wilson took it charged with all the equities existing between the plaintiff and his assignors at the time it was assigned to him.

Reversed.