Lyon v. Byington

10 Iowa 124

• Court: Supreme Court of Iowa
• Decided: December 9, 1859
• Status: Published

Opinion

WRIGHT. C. J.

I. Tbe original notice was not defective in .omitting tbe name of the State. It follows tbe form given in tbe Code, and more is not required.

II. The action was commenced prior to tbe October term, 1857, of tbe Johnson District Court, and judgment rendered in January, 1859. It is not true, therefore, that the judgment was rendered at the appearance term. Appellant, in this respect, mistakes the record. And tb.e same may bo said of tbe assignment, based upon tbe ground that tbe judge trying tbe cause was plaintiff’s attorney. Judge Dillon and not Judge Miller tried tbe cause.

III. Appellant concedes that tbe judgment exceeds the amount to which plaintiff is entitled under tbe notice and petition, in tbe sum of $1.80, and this he remits. There is no error in tbe amount of tbe judgment beyond this as claimed by appellant. Plaintiff under bis notice and petition was entitled to interest on tbe amount claimed, from the commencement of bis suit. Butcher v. Brand, 6 Iowa 235; Haven & Buck v. Baldwin, 5 Ib. 503.

IY. Defendant answers that for a consideration time of payment was extended, and that under this contract tbe note sued on was not due when the action was commenced. He now claims -that this part of bis answer was not denied, and that the court therefore erred in rendering judgment for plaintiff. In this assumption the appellant is not sustained by tbe record. It is true that tbe replication is not very specific in its denial of tbe matter stated in the answer ; but we think after judgment, and when tbe objection is made for tbe first time in this court, it is sufficient.

Y. It is not assigned for error that tbe judgment was rendered by default, while tbe defendant’s answer was on file. Judgment affirmfed, except as to tbe excess remitted by appellant, plaintiff paying tbe costs of this court,