Ruddick v. Marshall

23 Iowa 243

• Court: Supreme Court of Iowa
• Decided: July 31, 1867
• Status: Published

Opinion

Dillon, J.

1. pleadmg: .junior mortgagee‘ We can only notice the points set down in the demurrer. The first -ground is based upon the idea that the action was for a breach of covenant, and made the point that the petition* was defective in not showing title to the land in the plaintiff. The action was not of this character and the demurrer misconceived it. The second point in the demurrer is, that the record of the plaintiffs’ foreclosure suit is the foundation of the plaintiffs’ action, and it or a copy is necessary to be set out in or filed with the petition in the present case. This point was also properly overruled. The plaintiffs’ did not base their right to recover upon that record.

At least, such record was not the foundation of the action within the meaning of section 2920. They based their action upon section 3665 of the Revision. Under this section, the allegations show a cause of action, without basing the right to recover upon the decree or record referred to.

2. dkmuhbsb: extnbits. The demurrer containing only the above two poin.ts being overruled, the defendants filed an additional ground °f demurrer, stating therein, that “the defendantg make said record (the one above alluded to) a part of this demurrer and file the same as exhibit A.”

This additional ground was based upon matters claimed to be shown by the record thus exhibited. Filing an exhibit with a demurrer is indeed a novel practice, and counsel can hardly be serious in arguing that we can properly consider any question thus raised. The books refer to speaking demurrers. The one in question is without precedent, unless it falls within the class just named.

Affirmed.