Smith v. Gage

Supreme Court of Iowa

Smith v. Gage

31 Iowa 27

CourtSupreme Court of Iowa

DecidedJanuary 27, 1870

StatusPublished

Cited by1 cases

This text of 31 Iowa 27 (Smith v. Gage) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Gage, 31 Iowa 27 (iowa 1870).

Pincite

Opinion

Miller, J.

l. statute oe effect ofXae?: tfonofjUdgment. I. It is perfectly manifest that, in the face of the answer of Gage, no judgment could be legally rendered for the plaintiff without proof that he had resided out of the State as averred in plaintiff’s petition. It is conceded that no evidence of this fact was offered.

The note on its face was barred by the statute of limitations. No recovery could be had thereon, without proof of one or the other of the two facts alleged in the petition to take the case out of the operation of the statute, viz., proof by defendant in his pleading or by his testimony as a witness that the debt still justly subsisted, or proof that the defendant had resided out of the State as was alleged. [30]*30Both of these facts were denied by defendant in his answer. No recovery, therefore, was lawful or proper without some evidence of the defendant’s absence from the State.

3. new tnai. II. It is urged by appellant that the application of appellee is in the nature of a motion for a new trial, and should have been made within three days after ren(jition of the judgment. "Whether this position be correct or not, the appellant is not in a situation to take advantage of it. When the first motion was made by appellee to set aside the judgment, if liable to this objection,' the appellant should then have moved to strike it from the files for the reason that it was not made in time, or in some form made the objection at that time. This was not done; on the contrary plaintiff filed an answer'denying the facts stated in the motion and denying its sufficiency, and when the cause came on for hearing on the motion at the November term, 1869, “ the plaintiff desiring to take the depositions of the defendant and his attorney, it was agreed by the parties and ordered by the court that the motion should be continued,” and it was continued for that purpose. At the March term of the court the plaintiff for the first time suggested, in her answer to the amended motion, as it is called, that it should have been made within three days after the rendition of the judgment. By failing to make the objection at the proper time and in the proper manner she has waived it. We do not hold that the objection would have been good if so made, nor do we hold that it would not.

The showing made by the defendant in the court below made it the manifest duty of the court to set aside the judgment. The order is

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Miller, J.

l. statute oe effect ofXae?: tfonofjUdgment. I. It is perfectly manifest that, in the face of the answer of Gage, no judgment could be legally rendered for the plaintiff without proof that he had resided out of the State as averred in plaintiff’s petition. It is conceded that no evidence of this fact was offered.

The note on its face was barred by the statute of limitations. No recovery could be had thereon, without proof of one or the other of the two facts alleged in the petition to take the case out of the operation of the statute, viz., proof by defendant in his pleading or by his testimony as a witness that the debt still justly subsisted, or proof that the defendant had resided out of the State as was alleged. [30]*30Both of these facts were denied by defendant in his answer. No recovery, therefore, was lawful or proper without some evidence of the defendant’s absence from the State.

3. new tnai. II. It is urged by appellant that the application of appellee is in the nature of a motion for a new trial, and should have been made within three days after ren(jition of the judgment. "Whether this position be correct or not, the appellant is not in a situation to take advantage of it. When the first motion was made by appellee to set aside the judgment, if liable to this objection,' the appellant should then have moved to strike it from the files for the reason that it was not made in time, or in some form made the objection at that time. This was not done; on the contrary plaintiff filed an answer'denying the facts stated in the motion and denying its sufficiency, and when the cause came on for hearing on the motion at the November term, 1869, “ the plaintiff desiring to take the depositions of the defendant and his attorney, it was agreed by the parties and ordered by the court that the motion should be continued,” and it was continued for that purpose. At the March term of the court the plaintiff for the first time suggested, in her answer to the amended motion, as it is called, that it should have been made within three days after the rendition of the judgment. By failing to make the objection at the proper time and in the proper manner she has waived it. We do not hold that the objection would have been good if so made, nor do we hold that it would not.

The showing made by the defendant in the court below made it the manifest duty of the court to set aside the judgment. The order is

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

31 Iowa 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-gage-iowa-1870.

Opinion

Related

Cite This Page — Counsel Stack