Hayes v. Billings, 69 Iowa 387

Hayes v. Billings

69 Iowa 387 | Iowa | 1886

Sbevers, J.

The ground upon which the plaintiff asked that the sale of certain real estate be enjoined is that he was the head of a family, and that the premises constituted his homestead. Such an injunction was granted, hut the collection or enforcement of the judgment was not enjoined. The answer denies the allegations of the petition setting up the invalidity of the judgment, and, in relation to the homestead, states: “and for affirmative matter of defense defendants allege that the real estate levied upon * * * *388was not tbe homestead of the plaintiff at the time the indebtedness due defendant Billings, on account, was made and incurred, nor at the date of making the note,” upon which the judgment was rendered by the justice of the peace. The answer further stated that “said real estate levied upon contains about sixty acres of land, and that no part of said land is exempt from levy under said judgment.” This last averment is a legal conclusion, based on the prior statement that the indebtedness was incurred before the .premises became the plaintiff’s homestead. The allegation in relation to the time the indebtedness was incurred, and the homestead acquired, is not a denial of any allegation 'contained in the petition, but is an affirmative defense, which is pleaded in avoidance of the matter alleged in the petition; and, if establised, it will, it may be conceded, defeat the relief asked by the plaintiff. In such case the rule is that the injunction should not be dissolved on motion, but be continued to the hearing. Shricker v. Field, 9 Iowa, 366; Judd v. Hatch, 31 Id., 491; Fargo v. Ames, 45 Id., 494; Huskins v. McElroy, 62 Id., 508.

The circuit court, did not err in overruling the motion to dissolve the injunction.

Affirmed.