Wilson v. Chicago, Milwaukee & St. Paul R'y Co.

27 N.W. 916, 68 Iowa 673

• Court: Supreme Court of Iowa
• Decided: April 23, 1886
• Status: Published

Opinion

Reed, J.

By its tender defendant admitted that plaintiff liad a valid cause of action for the amount tendered. Johnson v. Triggs, 4 G. Greene, 97; Brayton v. Delaware Co., 16 Iowa, 44; Phelps v. Kathron, 30 Id., 231; Gray v. Graham, 34 Id., 425. If plaintiff liad elected, when the answer was filed, to accept the amount of the tender, he clearly would have been entitled to judgment for that amount. By the answer, defendant admits that plaintiff is entitled to judgment for $128.50, but by its motion in arrest it denies that he is entitled to judgment for any sum. It cannot be permitted to occupy both of these positions at the same time. The motion in arrest is inconsistent with the tender, and cannot be entertained.

Error is assigned on the order sustaining the motion for a new trial, but counsel have not argued the assignment. An assignment of error which is not argued is regarded as abandoned or withdrawn.

Affirmed.