8 Iowa 337 | Iowa | 1859
It is objected that the demurrer to defendant’s first answer, was improperly sustained. Without examining this answer, we dismiss it with the remark, that if the rule that a party, by answering over, waives his right to make such an objection in this court, should ever be rigorously enforced, it should be in a case like this, where the second answer admits, under oath, the entire justness and correctness of the plaintiff’s claim. After this admission, there was nothing left of law- or fact to try; for the right of the plaintiff to recover, in manner and form as prayed for in his petition, was fully conceded.
And this brings us to the second question presented by appellants, and that is, was it propei’, against defendant’s objection, to enter judgment at the first term. The Code provides (section 1763), that, “except when otherwise provided, causes shall be tried at the first term after they are commenced, unless reasonable cause for a continuance be shown.” This section was amended by chap. 127, of Laws of 1857-8, 249, by substituting second for first before “term,” but retaining every other word of the section. In our opinion, the law of 1858 was not designed to continue every cause to the second term after its commencemeent. By sec. tionl737 of the Code, a defendant is required to demur, or answer, or both, on .or before the morning of the second day of the term at which he is required to appear, unless the court, by general rule, or special order, otherwise direct; and then, by section 1824, it is provided that, if the defendant fail
Finally, it is urged that there was error in decreeing the foreclosure of defendant’s equity of redemption. And here appellants raise the question, whether, under our law, the mortgagor has the right to redeem, after the rendition of the judgment, or the sale of the mortgaged premises. The question is one of very general importance — has been very ' hastily presented by counsel — and as we do not deem its disposition necessarily involved in the determination of the present causé, we conclude to leave it open until more directly and fully involved and discussed in some subsequent case. .As we understand the judgment, in this case, it follows substantially the provisions of the Code. It does not undertake to bar and foreclose, absolutely and at once, the defendant’s right to redeem. Whether such an order coidd be made, or the effect of it when made, seems not to have entered into the consideration of the court, at the time of rendering judgment. This much is very clear, that it was, at least, ■not intended to cut off the right to redeem before the sale under the special execution; and as to the effect of the sale -upon this right, the judgment is equally silent. We say that the right to redeem before the sale, is not cut off. And this is manifest from the very fact of ordering the .sale. This is the means provided by the law, and contemplated by this judgment, to enforce the collection of the mortgagee’s debt. And to accomplish this seems to have been the object and purpose of the judgment. Beyond this, the court did not go — nor was it necessary.
Judgment affirmed.