Smith v. Warren County

49 Iowa 336

• Court: Supreme Court of Iowa
• Decided: October 24, 1878
• Status: Published

Opinion

Seevers, J.

1. practice: demurer. None of the evidence is before us, and the only error assigned is as follows: “The court erred in rendering judgment against the defendant, for the reason that the facts set forth and allegations made in plaintiff’s petition, and the different counts thereof,. as tbe grounds of bis cause of action against tbe defendant, and upon wbicb be seeks a recovery against defendant, are not sufficient in law, if true, to constitute a cause of action against defendant, and to entitle plaintiff to said judgment.”

It bas been beld, time and time again, if an answer is filed, sueb as that in tbe present case, after a demurrer to tbe petition bas been overruled, that tbe demurrer is deemed waived.

Tbe assignment of error, it seems to us, only challenges tbe ruling of tbe Circuit Court on tbe demurrer. Concede, however, if tbe facts stated in tbe petition do not entitle tbe plaintiff to any relief whatever, that a judgment should not be rendered against it. We are unable to right the wrong, if one bas been done, in tbe present case, because no motion in arrest of judgment was made in tbe court below. Code, § 2650.

2_. m0_ ti°n. This court cannot reverse a judgment which could be corrected on motion in an inferior court, until such motion bas been there made and overruled. Code, § 3168. if a mof¿on arrest had been made below, for aught we can know tbe plaintiff might have filed a statement of tbe material fact omitted, as provided in Code, §§ 2842, 2843, and then been entitled to judgment. This, of course, cannot be done in this court. ^

Aefibmed.