48 Iowa 48 | Iowa | 1878
The case of Schmidt v. Zahensdorf, 30 Iowa, 498, seems to be conclusive of this question. We quote from that case as follows: “The plaintiff, in his petition, averred the facts constituting his right to, and made a claim against defendants for, use and occupation of the land in controversy, to the extent of $300. This claim was denied by the defendants. With the issue thus made, the case was submitted to the court. The judgment entry recites that, there being no evidence offered by either party as to the value of the rents and profits, the same is not considered, and no judgment hereby rendered touching the same. The action for the rents and profits was not dismissed, nor the claim therefor withdrawn. The defendants having been thus once compelled to litigate the question and prepai'e for this defense, they have a right to judicial immunity from being again required to answer the same claim. The judgment will be so modified as to make the same final against plaintiff’s claim for rents and profits.” In the case at bar, also, the counter-claim was embraced in the issue, at the time of the final submission and judgment, and
The judgment of the Circuit Court is
Reversed.