Van Valtenburg v. Alberry

10 Iowa 264

• Court: Supreme Court of Iowa
• Decided: December 30, 1859
• Status: Published

Opinion

Weight, 0. J.

The parties unite in presenting this case as one to be governed by the equity practice, and not by any of the provisions of the Code.

As thus considered, there is no fair room for doubt upon the questions made. It was the right of the complainant to require a sworn answer. An answer should be regularly signed and sworn to. 2 Danl. chapter 845, Story’s Eq. PL 874, and cases cited in notes.

If the paper last filed by respondent is to be treated simply as an ansiuer, then the motion reached that, and as it was not sworn to, it placed the respondent in no better condition. If treated as a cross-bill, then not being sworn to, it could not stay proceedings in the original bill. Not only so, but respondent could not require an answer to it until he had answered the original bill.

We may add that this jjaper can hardly be called a cross-bill. According to strict equity practice, it is wanting in many of the material requisites of such a bill. As an answer it covers the same, and all the ground covered by the first filed and in fact in effect superseded it.

Complainant admits that the decree is for a greater sum than he was entitled to under his petition. The excess he remits, and asks a decree in this court for the amount claimed with interest at ten per cent, from the time of commencing his action (September 15,1858.) To this he is entitled, and the decree will be so entered, appellee paying the costs of this appeal.