8 Iowa 334 | Iowa | 1859
1. The error first assigned is, that the court refused to give defendants the opening and close of the case, which they claimed, upon the ground that they had admitted the plaintiff’s demand, and set up new matter. This is not a proper matter upon which to base an appeal, nor for the asssignment of an error. Nor, if it were, has the defendant so admitted the plaintiff’s cause of action, as to allow his claim. The admission of the assignment is .materially qualified; and besides, the answer does not present a defense, nor yet an avoidance, as they sometimes term it, but they plead a set-off, which is in the nature of a cross-action. This, standing alone, would give them the right to the position they claim, but they do not clearly admit the plaintiff’s cause; and we allude to it for the reason that they confound it with matters of defense.
2. The second error assigned, is the refusal to admit the deposition of one Edwards. This was designed to prove the matter of the set-off, and the court held that this could not be urged against the plaintiff, he being an indorsee before the note became due. A copy of the note is given in the statement. The defendants urged that it was over-due when assigned, for that the days of grace were not to be regarded in a question of this nature. The note was dated the 1st of September; was due in ten days, that is on the lltli, and the days of grace would run to, and include, the llth. It was assigned on the 13th day. It was not overdue when indorsed, and the set-off could not prevail against the indorsee, the plaintiff, and of consequence, the deposition was not admissible to prove it against him.
Ujion the proposition that a promissory note is not over
3. The third assignment, is to the refusing to compel the plaintiff to testify, without being subpoenaed regularly, he being present in court when called upon by the defendant as a witness. If the party were duly summoned by subpoena, he could not be compelled actually to testify, but he might submit to the alternatives mentioned in section 2421-2 of the Code. It is understood, therefore, that the defendant claimed, that the party being present in court, might be called upon as a witness, without being-served with a subpcenea. The court ruled according to this view, and held that ho was obliged to take the position of a witness, being so called upon. We think this was correct. The object of the summons is only to give notice
Therefore, there being no error found in the judgment aforesaid, the same is affirmed.