McKee v. Illinois Central Railway Co.
Supreme Court of Iowa
Appeal from, Dubuque District Court. — How. Feed O’Donnell, Judge. The action is one to recover for an alleged personal injury, and for damage to property. To the original petition filed by plaintiff a demurrer was interposed, the grounds thereof being, in effect, that the facts alleged do not state a case of actionable negligence. Upon hearing, such demurrer was sustained.
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Appeal from, Dubuque District Court. — How. Feed O’Donnell, Judge. The action is one to recover for an alleged personal injury, and for damage to property. To the original petition filed by plaintiff a demurrer was interposed, the grounds thereof being, in effect, that the facts alleged do not state a case of actionable negligence. Upon hearing, such demurrer was sustained. Plaintiff took leave to amend, and thereafter filed successively three amended and substituted petitions. Each of these in turn was stricken from the files on motion of defendant, the reason therefor in each instance being…
1Opinion of the Court
Bishop, O. J.
i. pi.eadi.'íg over.- waiver, The single error assigned is that “the court erred in sustaining defendant’s motion to strike from the files the plaintiff’s third amended and substituted petition, and in rendering judgment against plaintiff for costs. ” The ruling upon the demurrer, not having been appealed from, was determinative of the sufficiency of all matters stated in the petition, and as such became conclusive upon the plaintiff. Stating the proposition another way: Having taken leave to plead over, and having filed an amended and substituted petition, *552plaintiff must be held…
2Cases cited4 opinions
- Town of Waukon v. StrouseSupreme Court of Iowa · 1888
- Bixby v. Blair & Co.Supreme Court of Iowa · 1881
- Duncan v. HobartSupreme Court of Iowa · 1859
- Brown v. McMahonSupreme Court of Iowa · 1890
3Cited by7 opinions
- Watkins v. Iowa Central Railway Co.Supreme Court of Iowa · 1904
- Weimer v. LueckSupreme Court of Iowa · 1944
- Wisner v. NicholsSupreme Court of Iowa · 1913
- Myers v. WendelSupreme Court of Iowa · 1924
- Mazarredo v. GarcíaSupreme Court of Puerto Rico · 1923
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