Coakley v. McCarty

34 Iowa 105 | Iowa | 1871

Miller, J.

1 Practice: waiver of error. I. The first error assigned is the overruling of the defendant’s motion for a more specific statement of the factss constituting the plaintiff’s cause of action.

This error, if any there was, was waived by the defendant answering the petition and going to trial thereon. Snell v. Hancock, 11 Iowa, 117; County of Mahaska v. Ingalls, 16 id. 81; State v. Klingman, 14 id. 404; Franklin v. Twogood, 18 id. 515; Wilcox v. McCune, 21 id. 294. These cases hold that answering after a demurrer is overruled waives the demurrer. The same consequence follows when defendant answers after the overruling of a motion attacking the petition.

II. The overruling of defendant’s motion for a new trial is the next error assigned. Tinder this assignment the counsel for appellant presents, in his argument, the question of the sufficiency of the evidence to sustain the verdict. His argument upon the evidence is able and elaborate, and were we sitting as a court or jury, trying the cause de novo, we would be inclined to hold with him on the preponderance of the evidence as it appears in the printed abstract. But there is quite considerable conflict in the evidence, and under the instructions of the court, to which no exceptions were taken, the jury might fairly determine this conflict in favor of the plaintiff. We have frequently held that where the evidence is conflicting, and the court below has refused a new trial, we will not disturb the verdict.

2.-on appeal. III. The only remaining error assigned and argued is: “ In rendering judgment in favor of plaintiff and against the defendant for costs, and in rendering judgment against mm as administrator, and m making it absolute and not qualified or conditional.”

Without deciding whether these objections would be tenable or not if properly presented, it is sufficient answer to this assignment that -these objections were not made in the court below. We have uniformly held that we will not review or pass upon questions not presented in the court below, nor correct errors which might have been corrected there, until a motion has been made in such court and overruled. The errors complained of, if they are such, could have been corrected on motion in the court below, and until such motion has been made and overruled we are not authorized to review them. Rev., § 3545; Berryhill v. Jacobs, 20 Iowa, 246, and cases there cited; McGregor v. Gardner, 16 id., 538, 543; see also cases on this point collected in 2 Iowa Digest, § 100, pp. 61, 62, 63, 64.

Finding no error on which we can reverse the judgment it is

Affirmed.