Rea v. Flathers
Supreme Court of Iowa
Appeal from, Clinton Circuit Court. The plaintiff filed his petition in the office of the clerk of the circuit court, setting up a claim against the estate of James Rea, deceased, of which defendant was executor, and on whom an original notice was served. The proceeding was first placed on the court calendar of law causes, but afterward, by order of the judge, transferred to the probate calendar.
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Appeal from, Clinton Circuit Court. The plaintiff filed his petition in the office of the clerk of the circuit court, setting up a claim against the estate of James Rea, deceased, of which defendant was executor, and on whom an original notice was served. The proceeding was first placed on the court calendar of law causes, but afterward, by order of the judge, transferred to the probate calendar. The cause coming on for hearing, defendant moved to dismiss the action, “ for the reason that the claim sued on was never filed with the clerk of said court, nor presented to the executor in due…
1Opinion of the CourtMiller, J.
1. practice: waiver by pleading over, — I. Two errors are assigned. The first is to the overruling of defendant’s motion to dismiss. Whether there was error in this ruling we cannot , v,,. n now consider, as by filing an answer and going to trial the appellant waived his exception to the ruling of the court on his motion. Draper v. Ellis, 12 Iowa, 316.
8. contract: quantum63: mermt. II. It is, in the next place, assigned as error that the court erred in overruling defendant’s motion for a new trial, because the finding was not sustained by sufficient evidence, and is contrary to law. The basis…
2Cases cited1 opinion
- Draper v. EllisSupreme Court of Iowa · 1861
3Cited by7 opinions
- Northwestern Trading Co. v. Western Live Stock InsuranceSupreme Court of Iowa · 1917
- Shugart & Lininger v. PatteeSupreme Court of Iowa · 1873
- Benedict v. HuntSupreme Court of Iowa · 1871
- Stineman v. BeathSupreme Court of Iowa · 1872
- Wyman v. PassmoreSupreme Court of Iowa · 1910
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