Arbuckle v. Bowman

6 Iowa 70 | Iowa | 1858

Wright, C. J.

— It is first urged, that the court below erred in ordering the name of Henry Bowman to be substituted for that of Henry Bauman, after overruling the demurrer to his plea in abatement. While there is no provision of the Code expressly giving the power to order the substitution of the true name of a party, where ascertained, yet we are clear, that it is entirely competent for the court to so direct, under the numerous and liberal provisions which give the right to amend pleadings, or any paper in a cause. See sections 1759, 1758, 1757, 1855, 1856, and 1694, and Harkins v. Edwards and Turner 1, Iowa, 296. We cannot see how any substantial right of the defendant could possibly be prejudiced, by permitting this amendment. He was practically and really as much in court before, as after, this substitution. The change could in no manner take him by surprise, and substantial justice would not seem to require even a continuance of the cause, much less its dismissal.

It is next objected, tbat the answer being undonied, judgment should have been for defendant, Bowman. It may be doubted whether this answer contains any affirmative allegation, which required a denial, within the meaning of section 1142, of the Code. . Passing this, however, we think for other sufficient reasons, that the objection cannot avail. It seems that defendant, Bowman, appeared and submitted the cause to the court for trial, waiving a jury ; that it was heard upon testimony ; and that he at no time, either before or after judgment, claimed that his answer had been admitted, or was to be taken as true. No such question was, therefore, ever presented to the court below, and we think it fair to presume, that the cause was heard as if the issue was fully joined. Under the circumstances, we are unwilling to give the objection weight at this stage of the cause.

In rendering judgment by default against Walker, after he had answered, and when it was still on file, there was error. Of this there is no room for doubt.

The judgment is affirmed as to defendant, Bowman, and reversed as to the defendant, Walker.