Moore v. District Township

28 Iowa 425

• Court: Supreme Court of Iowa
• Decided: April 6, 1870
• Status: Published

Opinion

Beck, J.

The only question raised upon the record before us, relates to the ruling of the District Court upon defendant’s motion to transfer the cause to the chancery docket.

Section 2613 of the Revision provides, that “ an error of plaintiff, as to the kind of proceedings adopted, shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings by an amendment in the pleadings and a transfer of the action to the proper docket.” Section 2615 provides, that defendant shall be entitled to have the correction of such an error, in the case where an action, properly cognizable at law, is brought by equitable proceedings, upon motion made at the time of the filing of the answer. The motion in this case was not made when the answer was filed, and was, for that reason, properly overruled. The fact that the answer to the amended petition was filed upon the same day with the motion, is not a sufficient answer to the requirements of the section last cited. The objection raised by defendant’s motion is aimed as well at the original as the amended petition ; neither does the amended petition so change the character of the proceeding that it is only thereby rendered obnoxious to the objection. The objection existed when defendant’s first answer was filed; not having been made at the proper time, the law presumes that it was waived.

Affirmed.