Martin v. Dobbins

32 Iowa 594

• Court: Supreme Court of Iowa
• Decided: June 14, 1871
• Status: Published

Opinion

Cole, J.

The petition for intervention fails to show the relation between Dobbins and Mrs. Plesharty sufficient for determining whether she ought properly to be allowed to intervene. Por instance, if Dobbins was indebted to her in the sum of $250, and in consideration of that indebtedness and at her request executed the note sued on, then it became a payment of the balance due for the land and the title to it passed directly to O’Reilly, and from him to plaintiff so as to cut off any defense by Dobbins growing out of any equities between O’Reilly and Mrs. Plesharty, as well as any claim to the note by her against a purchaser thereof. But if Dobbins executed the note in his own name, but for Mrs. Plesharty, who, as between them, was to pay it, then she might be entitled to intervene, and the defendant Dobbins might also be able to avail himself of such fact in defense. And the same may be true also of the matters alleged respecting the second purchase.

Since the plaintiff assailed the pleadings by the unusual, if not unwarranted, “ motion to expunge from the files,” instead of by demurrer, upon the sustaining of which 'the defendant and intervenor might have elected to amend, we are of the opinion that the judgment should be affirmed, and the cause remanded with leave to the defendant and intervenor, or either of them, to file amended pleadings as they shall be advised.

Affirmed.