208 N.W. 288 | Iowa | 1926
The petition charged the defendants with the alienation of the 1. APPEAL AND affections of plaintiff's wife. A motion for a ERROR: more specific statement in the petition was review: sustained, by an order of court duly entered on scope and September 24, 1924. The plaintiff excepted, ex-extent: refused to plead over, and elected to stand on order for his petition. On May 19, 1925, the court more dismissed the petition, and rendered judgment specific against the plaintiff for costs. From this final statement. judgment the appeal was perfected.
I. Appellees present a motion to dismiss the appeal on the grounds (1) that an appeal will not lie from an order sustaining a motion for a more specific statement, and (2) that the appeal was not taken in time. It is a sufficient answer to say that the appeal was not from the order sustaining the motion, but from the final judgment dismissing the action, and was taken on the same day the judgment was entered.
II. It is further contended that the appeal from the final judgment does not bring before us for review the alleged error of the court in sustaining the motion.
The plaintiff might, of course, have amended, in compliance with the ruling, and proceeded to the trial. But by pleading over, he would have waived the alleged error in the ruling on the motion. Northwestern Trading Co. v. Western L.S. Ins. Co.,
Appellees amend the abstract "by showing that formal order of dismissal on April 19, 1925, was solely upon active procurement of appellant." The amendment does not purport to 2. APPEAL AND set out any record made in the lower court, or ERROR: to make any correction in the record presented abstracts in appellant's abstract, and there is no denial of record: of the latter. The abstract shows appellant's amendment: exception to the final judgment. In the absence unallowable of specific denial or correction, it is to be method. taken as true. Section 12845, Code of 1924;McGillivary Bros. v. Case,
III. We are of the opinion that the motion should have been overruled. The fact that the wrong charged was alleged to have been committed by "slandering plaintiff and by 3. HUSBAND AND deliberately, maliciously, premeditatedly, and WIFE: wickedly cultivating" in the wife a dislike for enticing and plaintiff, did not bring the case within any alienating rule which requires one who alleges slander to pleadings: set out the words uttered and the persons in sufficiency. whose presence spoken. The allegation is that the defendants conspired to commit the wrong complained of, and jointly and severally, and "each of them acting in conjunction and separately," did the acts complained of. This sufficiently alleged that each of the defendants did the things and used the means charged.
We think that the petition sufficiently set out the acts and representations of the defendants which it was alleged were for the purpose of cultivating a dislike for plaintiff, and by which it was alleged the wife was induced to stay away from plaintiff.
The plaintiff was not required to plead his evidence, nor *317 each act or statement by the defendants upon which he might rely, to establish the charge of the petition. He did state quite fully the character of the statements and acts by which he alleged the affections of his wife had been alienated. This was sufficient, and the motion should have been overruled.
It results that the judgment must be, and is, — Reversed.
De GRAFF, C.J., and STEVENS, FAVILLE, ALBERT, and MORLING, JJ., concur.
