Abbott v. Striblen
Supreme Court of Iowa
Appeal from the Lee District Court. Action was on a promissory note, against the indorser. The plaintiff alleges that the defendant indorsed and delivered to him, in payment for goods sold and delivered to defendant, a promissory note made by Phillips & Co., and payable to the said Striblen.
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Appeal from the Lee District Court. Action was on a promissory note, against the indorser. The plaintiff alleges that the defendant indorsed and delivered to him, in payment for goods sold and delivered to defendant, a promissory note made by Phillips & Co., and payable to the said Striblen. The defendant demurred to the petition, which demurrer being sustained, the plaintiff amended his petition, to which petition a second and third demurrer was filed — both of which were overruled. The defendant then answered the petition, and the issues being joined, the parties proceeded to trial. Yerdict…
1Opinion of the CourtWoodward, J.
— The first error assigned, is to the overruling defendants second demurrer to the plaintiff’s petition and amended petition. After this decision by the court, the defendant answeredj and then rejoined to the plaintiff’s replication, joined issue, and went to trial. It has been often decided, that, hy pleading over and going to trial, the defendant waives his demurrer to the petition. See 3 Iowa, 150, 209, 582. The same re mark applies to the second assignment, which is to the overruling the third demurrer of defendant, which objected to the sufficiency of the amended petition.
The third error…
2Cases cited1 opinion
- Harmon v. ChandlerSupreme Court of Iowa · 1856
3Cited by4 opinions
- Nye Odorless Incinerator Corp. v. FeltonSuperior Court of Delaware · 1931
- Collier v. ErvinMontana Supreme Court · 1878
- Pottinger v. GarrisonNebraska Supreme Court · 1874
- State v. GreenSupreme Court of Iowa · 1866