| Iowa | Oct 6, 1860
The demurrer was properly sustained. Granting that the acceptance, because of its special character, would have the effect of discharging the drawers and prior indorsers, it would have no such effect as to the payers and acceptors. The payees, the present plaintiffs, at least took the bill before the maturity of either instrument as fixed by the terms of the acceptance, and as such, were innocent holders, so far as related to any defense of fraud or mistake growing out of the original transaction. Whatever the failure or want of consideration, could make no difference, when it is remembered that plaintiff purchased
II. After the demurrer was sustained to the answer, we do not understand that anything remained for trial. As we construe the pleadings, the defendants deny that they owe the amount claimed in the petition, and then proceed to state, as they term it, more specifically, why they, do not, setting up the matter above considered. This being held insufficient, therefore nothing remained to be tried.
III. It is true that the party, to whose pleading a demurrer is sustained, may amend or plead over, upon terms. If he fail to do so, however, and asks no leave to amend at the time of the determination of the demurrer, but excepts to the ruling thereon, and if no other item of fact remains for trial, judgment may be entered, as for want of an answer. In rendering judgment in this case, therefore, after sustaining the demurrer, there was no error.
IV. The judgment exceeds the amount claimed with interest $7,59; that being remitted, judgment will be affirmed, appellees paying the costs of the appeal. Otherwise, judgment will be reversed and remanded.