Philips v. Hosford

35 Iowa 593

• Court: Supreme Court of Iowa
• Decided: December 11, 1872
• Status: Published

Opinion

Beck, Ch. J.

The only objection presented for our consideration is based upon the ruling of the court in sustaining defendant’s demurrer to the second count, or first amendment to the plaintiff’s petition. After decision upon the demurrer, the pleading assailed was amended, and thus, in its, averments, made to conform to the ruling of the court. Thereupon issue was taken upon the petition, as it stood after the two amendments, and a trial had resulting in a verdict and j udgment for defendant.

It has been repeatedly held by this court that objections to the ruling upon a demurrer is waived by pleading over in conformity to the judgment of the court upon the question presented by the demurrer. The rule is applicable to the case where the demurrer is sustained as well as when it is overruled. Smith v. Cedar Falls & M. R. R. Co., 30 Iowa, 244; Byington v. Oaks, 32 id. 487; Eubank v. Whittaker, 11 id. 197; County of Mahaska v. Ingalls et al., 14 id. 170; State v. Flingman, id. 404; Franklin v. Twogood, 18 id. 515; see also Fisher v. Scholte, 30 id. 221; Crawford v. Wolfe, Carpenter & Co., 29 id. 568; Rea v. Flafhers, 31 id. 545 ; and for other cases supporting the rule see Dillon’s Digest, p. 650, § 95 ; Hammond’s Digest, p. 362, § 29; Lacy’s Digest, p. 197, § 43.

We are not therefore required to pass upon the ruling of the court, objected to by defendant, as by the amendment to his petition, so as to cure the alleged defects pointed out by the demurrer; he has waived the error, if any there was, in the judgment complained of.

The judgment of the circuit court is

Affirmed.