PLEA AND CHARGE Continued
had been completed, without allegation that new contract was
conditional on the performance of a condition by the defend-
ant. Held, an instruction that plaintiff could recover if the
new contract was conditioned on a performance which defend-
ant had refused to perform, is a departure from the issues.—
Pitstick v. Osterman, 189.
PLEA AND PROOF-LIBEL, ; NEGLI. 2; PRACT. ; RAIL. ".
1. A plaintiff in a creditor's suit, who bases his claim on a judg.
ment of the district court, secured by filing a transcript of a
judgment of the superior court, cannot, on failing to prove
that such transcript had been filed, rely on the judgment of
the superior court.-Peterson v. Gittings, 306.
2. SAME-Where no excuse on account of drought is pleaded to a
contract of agistment, evidence that pasture furnished was
good pasture for a drought year is immaterial.—Cattle Co. v.
Anderson, 231.
3. FRAUD-An alleged false representation, that plaintiff's attorney
had offered to settle his suit for a stated sum is not admissible
to avoid a settlement made between plaintiff and defendant's
attorney, unless set up in pleading.-Johnson v. Railway, 1.
4. Waiver A party who permitted the introduction, without
objection, under a general denial, of evidence relevant to an
issue of fraud, which was not averred, is deemed to have con-
sented to the trial of that issue. -Beach & Weld v. Wakefield,
567.
PLEADING-See EVID., 1; PRACT.,,, ; RAIL, 30.
1. Abatement-Plea in abatement is not necessarily good because
Code 1873, section 2732, provides that such a plea may be joined
with one in bar, since the statute does not undertake to specify
what shall be considered a good plea in abatement -Moffitt v.
Chicago Chronicle Co., 407.
2. Amendments-An amendment, filed after the submission of the
case, asking additional relief, is properly disregarded, where
such relief cannot be given without re-opening the case and
hearing further testimony.-Burkhardt v. Burkhardt, 369.
3. CURING VARIANCE-In an action for an accounting, there was a
plea of full settlement, and evidence which tended to show
special settlements, and that there were mistakes if not fraud,
in them, and which warranted a finding that there had been no
full and final settlement, and that defendant was not misled by
a claim of fraud and mistake set up by an amendment filed by
plaintiff, without leave, after verdict. Held, it was not an
Small figures refer to subdivisions of Index. The others to page of report.
abuse of discretion to permit the amendment to stand.-Weiland
v. Ehlers, 186.
4. "Cause of Action" Defined-In an action to recover damages
for negligence, "the cause of action," as used in pleading, is
not the injury wrongfully inflicted through defendant's neg-
ligence, but is the fact or facts that justify the action, or show
the right to maintain it. If this were not the rule one petition
charging one negligence might always be amended so long as
the amendment confined itself to charging some other negli-
gence.-Box v. C. R. I. & P. Ry. Co., 660.
Construed-A petition for contribution, alleging that plaintiff
and defendant were tenants in common of land, does not by
implication state they were partners, because, in the deed con-
veying the land to them, attached as an exhibit to the petition,
their names were written as partnership titles usually are.-
Koboliska v. Swehla, 124.
6. Contributory Negligence-A petition based on defendant's
negligence in shooting plaintiff with a revolver must show that
plaintiff was free from contributory negligence.-Kleineck v.
Reiger, 325.
7. Demurrer-A demurrer to a complaint in a special proceeding
because the facts stated do not entitle plaintiff to the relief de-
manded is insufficient.-In re McMurray, 648.
8. Election of Remedies-Defendant in an action for goods sold
and delivered may, after a plea of rescission and tender back
of the goods has been held bad on demurrer, because the prop-
erty was held for an unreasonable time, amend by pleading a
breach of a warranty of the goods. --Thorson v. Baker, 49.
9. Motion and Demurrer--Motion for more specific statement
and not demurrer is the remedy, where petition of one who
has paid a mortgage for contribution from his cotenant, does
not state the da'es of payment or the rate of interest.--Kobol-
iska v. Swehla, 124.
10. SAME--Immaterial matter cannot be expurgated by demurrer,
under Code, section 3618, providing that such matter may
be stricken out on motion.--In re McMurray, 649.
11. Prayer-Costs-One who held land as security for a debt was
induced by fraud against himself and debtor to deed the land
to a third party, who deeded to another, who was also a party
to the fraud. He sued them, and secured a decree setting aside
the deeds, subjecting the land to his claim, and awarding fore-
closure. Held, that, except as to foreclosure, he was entitled
to costs against the fraudulent defendants under a prayer for
general relief and costs-Mountain v. Low, 403.
Small figures refer to subdivisions of Index. The others to page of report.
PLEAD. Continued
12. SAME-An allowance for rent collected by a mortgagee as agent
for a mortgagor is properly allowed to the latter's transferee
in an action to foreclose the mortgage where he does not seek
by way of counterclaim to recover for the rent but alleges that
the claim therefor was assigned to him and asks to have it
adjudicated in the action.-Steckel & Son v. Standly, 695.
13. Ratification-Ratification of the act of an alleged agent is
equivalent to prior authority and need not be specially
pleaded.-Smith v. Des Moines Nat. Bank, 627.
14. Waiver That the expiration of the time limit on a ticket was
waived, must be pleaded.-Trezona v. Ry., 22.
15. SAME-The defense that a condition in policy prohibiting addi-
tional exposures was waived, and which was not pleaded,
should not be submitted; nor is evidence that the exposures
were shown an agent admissible, as relating to a description
of the property.-McCoy v. Ins. Co., 80.
16. SAME-A waiver of a right to recover must be pleaded to be
available and relief not prayed for should not be granted.-
Brown v. Legion of Honor, 439.
17. Limitations-Where a defendant, in his demurrer does not raise
the question of limitation of the action it will be treated on
appeal as waived-In re McMurray, 649.
PLEA IN ABATEMENT-See PLEADING, 1.
PRACTICE-See ADJUD., 2; COUNTY ATT'Y, 2; CREDITORS, 1, 2;
CRIM. LAW, 13; EVID., 13, 14, 15; FRAUD CONV., 2; INSTRUCTIONS.
8; JUDGMENTS, 6, 7; JURORS, 2; PLEA AND PROOF, 1; PLEADING,
2, 3, 11; TEL. COMPANIES, 9, 11, 14; WILLS. 3, 4, 8.
1. Actions-Party in Interest-Acts Seventeenth General Assem-
bly, chapter 56, provides (section 1) that all cities of the first
class may provide by ordinance for the payment of salaries
to officers, and (section 2) that all fees allowed by law for
their services shall, by such officers, when collected, be paid
into the city treasury. Held, that where a city has so pre-
scribed by ordinance, it may maintain an action against the
county for fees earned by such officers in vagrancy cases.-
City v. Polk Co., 525.
2. FOREIGN CORPORATIONS-Estoppel-A foreign corporation which
had obtained no permit authorizing it to do business in the
state, was not thereby rendered incapable of maintaining an
action in the local courts against a non-resident for damages
under a contract executed and to be performed, except as to
the delivery of the property, in another state.-Cattle Co. v.
Anderson, 231..
Small figures refer to subdivisions of Index. The others to page of report.
3. VENUE--The venue of an action upon a bond executed by the
officers of an accident association conditioned upon the per-
formance by the association of the requirements of a contem
plated decree of the Supreme Court, will be changed to the
county in which the signers of the bond resided when the
action was brought, and continued to reside at the time of the
filing of an application to transfer the cause to that county.-
Prader v. Ass'n., 431.
4. Action on Bond--A decree against a corporation required the
officers to make provision for payment, and for failure to com-
ply therewith contempt proceedings were instituted against
them, which the Supreme Court stayed on their giving bond
to secure the performance of any decree rendered in the cause
by the Supreme Court on appeal. The bond did not specify
any place of performance. Held, that by the contempt pro-
ceedings the officers did not become parties to the decree, so
as to authorize a suit against them on the bond in the county
in which the decree was rendered, under Code, 1873, section
2581, authorizing a suit on a contract to be performed in a par-
ticular place to be brought in a county where performance is
to be had.--Idem.
5. Same-They did not become such parties by giving the bond,
though it provided for the performance of the decree of the
district court.-Idem.
6. Same-An action on a bond to secure the performance of a
decree which merely makes the signers liable for damages for
non-performance, and does not require them to perform it, is
a personal action and must be brought in. the county where
defendants reside.-Idem.
7. Admissions for One Trial-The weight to be attached to a
concession, entered in an action on a policy for the purposes
of one trial only, that a contract of insurance existed which
might operate as a forbidden additional insurance, was for the
trial court on a subsequent trial against another company, the
fact of the additional insurance being then denied.-Taylor v.
Insur. Co., 275.
8. Amendment and Answer-A petition to which no interroga-
tories to defendant are attached cannot, after issue joined, be
refiled, with interrogatories, under the guise of an amendment,
thus compelling answer a second time.-Theis v. Ry. Co., 522.
9. Arrest of Judgment-Pleading-Under Code 1873, sections
2842, 2843, requiring an amendment filed by leave of court
Small figures refer to subdivisions of Index. The others to page of report.
after verdict and pending motion in arrest to be denied or con-
fessed, a failure to move to strike or respond amounts to an
admission of the facts stated.—Beard v. Guild, 476.
Bonds-See 3, 4, 5, 6 ante; 22 post.
10. Certiorari - The writ of certiorari cannot be granted when the
error can be corrected on appeal.-Oyster v. Bank, 39.
11. Challenge to Juror-Error in overruling a challenge to a juror
is not prejudicial, where the peremptory challenges of the
party are not exhausted.-Haggard v. Peterson, 417.
12. SAME-A challenge to a juror who was examined as to his feeling
or bias in the words, "The plaintiff challenges the juror for
cause," is too indefinite in not stating the grounds.-Idem.
13. Change of Venue-Motion-Defendants who are non-residents
of the county must move to dismiss the action, as required by
Code, section 3502, to entitle them to a dismissal, after there
had been a dismissal as to the resident defendants, though the
non-residents alleged in their answer that the action was
brought in the wrong county, where the issue raised by such
allegation had been litigated by the denial of their motion for
a change of venue, and from this they are not relieved because
the case is taken under advisement.-Brown v. Legion of
Honor, 440.
14. Collateral Attack-A judgment determining that jurisdic-
tional facts authorize the court to proceed, is good against
collateral attack, and if good between the parties is so against
strangers, in the absence of fraud or collusion.—Applegate v.
Applegate, 312.
15. EXECUTOR AND ADMINISTRATOR-The validity of the appoint-
ment of an administrator with the will annexed cannot be
collaterally attacked in an action by him to recover assets of
the estate. Seery v. Murray, 384.
16. Continuance-Plaintiff is not entitled to a continuance to
await the result of an appeal he intends to make from a ruling
sustaining exceptions to interrogatories filed with petition, on
the answer to which he is compelled to rely to prove his case,
even if such order be appealable.-Theis v. Ry., 523.
17. SAME-Continuance in an action for libel will not be granted on
the ground of the absence of the reporter who wrote the arti-
cle complained of, where he was not subpoenaed, but was
present at defendant's request when the case came on for trial.
and subsequently left the city because the latter's counsel re-
Small figures refer to subdivisions of Index. The others to page of report.
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