6 Iowa 301 | Iowa | 1858
— In tli£ defendant’s argument they say that the court wrongly ruled, that there was no sufficient answer in denial. It does not appear from the record, that the court ruled this, nor is it necessarily involved in the instructions given, and the first error assigned. They also claim that the court erred in ruling that by the justification, the defendants waived the denial. This is rather an inference of the party, and a construction placed upon the court’s rulings, for the court did not so rule in terms; and what they did hold, is fairly susceptible of quite a different meaning.
It will be necessary to state something of the proceedings in the cause, in order to a proper understanding of
The only question in the case, arises from the ruling of the court upon these pleadings. Coming to the question whether the plaintiff should make out a case first, or whether the defendants admit the taking, and assume the burden of proving their justification, in the first instance, the court instructed that, under the pleading, the taking is admitted, and plaintiff need not prove it; and that plaintiff had a right to recover, unless the defendants had proved the matter of justification.
It does not appear clearly whether the court considered the former answer as waived by the latter, as is contended in a part of the argument; or whether they held that the justification was, in its legal effect, a waiver, as being inconsistent with the first answer. We have had some doubt whether the last answers, were not intended
The case is very imperfectly prepared and presented in the record, so that we are unable to learn how it was viewed in the court below, upon some points suggested in the argument.
The judgment is reversed.