Porter v. Helmick
Supreme Court of Iowa
Appeal from the- Muscatine District Court„ Judgment before a justice, in favor of plaintiffs, on the 9th. of June, 1853. June 6th,.. 1854,, writ of error issued-from the District Court. At the October term,.1855, the plaintiffs moved to dismiss, the writ, because it was not sued out withiu the time prescribed by law..
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Appeal from the- Muscatine District Court„ Judgment before a justice, in favor of plaintiffs, on the 9th. of June, 1853. June 6th,.. 1854,, writ of error issued-from the District Court. At the October term,.1855, the plaintiffs moved to dismiss, the writ, because it was not sued out withiu the time prescribed by law.. This motion was sustained, and the writ-dismissed, for the reason stated in the motion, and also, as; stated in the bill of exceptions, because an appeal had been previously taken by the same party, and disposed of in the-same cause. The defendant appeals, and assigns for…
1Opinion of the Court
Wright, C.. J.
Whether the taking of an appeal, would preclude the same party from his right to a writ of error,, is not necessary to now decide. This question was not presented to the court below by the motion, and could not be-properly raised in this manner. It might be the proper-matter for a plea in abatement, but not for a motion. It-should be so raised as that' issue could be taken thereon, and the question regularly adjudicated. Whether there was or-was not such an appeal, was a question of fact, which was not, and could uot, be made by this motion ; and to dismiss the suit on that…
2Cited by1 opinion
- Ingersoll v. City of Des MoinesSupreme Court of Iowa · 1877