48 Iowa 433 | Iowa | 1878
The defendants in that action admitted in the answer the execution of the notes and indebtedness sued on, and set up as a counter-claim an indebtedness due them by the plaintiff on an account, and sought to recover damages for the willful and malicious suing out of the attachment. To the answer there was a reply denying all the allegations thereof. There was a trial on the issues thus formed, and a verdict and judgment for the defendants. At the time of such trial the note sued on in this action had become due.
The answer herein alleges “that in and among the several causes of action in said petition (in the former action) contained was the note sued on in this action, and such reference was had thereto in said petition * * * that issue was
The demurrer only admitted the facts well pleaded, but it did not admit conclusions based on the facts. The statement in the answer that the note sued on constituted a cause of action in the former suit is of the latter character. The pleadings hi that action being made a part of the answer, we have the right to look into them, which being done, we readily arrive at the conclusion that said note was not in issue, and did not constitute a cause of action in the former smit. It is true its execution was admitted, and no defense was pleaded thereto, but the only relief asked was that the court should make an order directing that any surplus arising from the sale of the machine should be applied toward its payment.
The defendants did not see proper to contest the right of the plaintiff to such relief, by motion or otherwise, nor were they bound to take that course, as it was competent for them to object to the relief asked at any time after verdict and before judgment. It is unnecessary to determine whether the plaintiff was, or could have been, entitled to such an order. The attachment, as we understand, only issued for the claims due. Therefore the allegations in the petition, in reference to the note sued on in this action, must be regarded as surplusage. It is not claimed this case comes within the provisions of sections 2956, 2957, 2958 of the Code.
If, under the pleadings in the former action, the plaintiff could not obtain judgment on the note if introduced in evidence, and the proof entitled him thereto, it would seem necessarily to follow that no judgment could be rendered which would bar his right of action thereafter. It is wholly immaterial what the jury did, whether they allowed, disallowed, or considered the note in arriving at their verdict.
The only question is, did the note sued on constitute an issue in the former action. If the rule be established that the action taken by a jury determines what has been adjudicated, much uncertainty must prevail. Their action, whether right or wrong, can have no effect on the question presented.
■ Under forms of pleading that existed previous to the adoption of the Code of 1851 there was a general issue under which evidence could be introduced. It was always competent for the parties, under an issue of former adjudication, to prove by parol the matters evidence had been introduced to prove which were properly before the court under the general issue, and the judgment rendered was conclusive as to such matters. Gardner v. Buckbee, 3 Cow., 120. Where the matters in issue are involved in uncertainty by the pleadings, parol evidence is admissible as to the identity of such matters. Stapleton v. King, 40 Iowa, 278. But the rule never has been extended to the introduction of evidence showing the action taken by the jury, or what matters were considered by them. To do so might tend to the contradiction of the record, and this is inadmissible. If the effect sought by appellants is given to the introduction of the note as evidence, and the action of the jury alleged to have been had in reference thereto, the result would be the establishment of an issue
Affirmed.