50 Iowa 307 | Iowa | 1879
I. The answer of defendant pleads two special defenses, namely: First, a former adjudication of the same cause of action in the County Court of Buffalo county, Nebraska, a court having full jurisdiction of the parties and subject matter, and judgment against the plaintiff was rendered in the cause, which was between the same parties that are in this suit; second, the note is without consideration, and was obtained by fraud, stating the facts upon which this defense is based, which need not here be presented.
To this the plaintiff replied, denying all allegations therein not admitted, and specifically denying the failure of consideration and fraud, pleaded by defendant, and presenting allegations of fact in regard to the transaction out of which the note grew, which need not be repeated here.
To the defense of former adjudication the following reply was made: “The plaintiff, for further reply, says it is true that the cause referred to in the defendant’s answer was tried
II. Upon the defense of fraud and want of consideration the court found for plaintiff, and upon the other defense of former adjudication for defendant. It was also found by the court that the allegation of an appeal and subsequent dismissal of the action was not supported by the evidence. Upon these findings judgment was rendered for the defendant.
The errors assigned raise but two. questions. The first involves the correctness of the court’s ruling in admitting in evidence the transcript of the record presenting the proceedings and judgment- in the action, pleaded as a prior adjudication ; the other, the sufficiency of the evidence to sustain the findings of the court and the judgment in this ease.
We find it unnecessary to determine the question here raised for this reason: “The reply of plaintiff to defendant’s answer explicitly admits the proceedings and judgment pleaded as a former adjudication, but sets up in avoidance of the defense the appeal from the judgment and subsequent dismissal of the-action. The defendant sets up the judgment as a defense in his answer. The fact relied upon as a defense is admitted in the reply, but its effect is avoided by the allegation of the appeal and dismissal of the suit. The reply is in conformity to Code, § 2665.
The judgment of the court, we think, is supported by the admissions of the pleadings and by the evidence. It must be.
Affirmed.