Heath v. Coltenback

5 Iowa 490

Opinion

"Wright, C. J.

The appellant insists that the court erred in the instruction given to the jury, as to the duty of plaintiff to fence his crops, and protect them against the alleged trespass of defendant’s stock. The instructions were in accordance with the rule as recognized by this court, in Bissell v. Wagner, 3 Iowa, 396.

It is also claimed that as the transcript of the justice does not show that defendant denied plaintiff’s claim, the court below erred in rendering judgment in favor of defendant. It does appeal’, however, that the parties before the justice, had a full investigation and trial of the case. Under such circumstances, we have held, in several cases, that the demand of plaintiff is not to be treated as admitted on the trial in the district court. Brock v. Manatt, ante, 270, and Milburn v. Sinnamon, 4 G. Greene, 309.

Judgment affirmed.