| Iowa | Jul 1, 1856
The plaintiff’s petition was drawn as if he claimed to recover on the demand, sued in his own right, as he is not alleged to he an assignee, nor as claiming in any other representative character. The facts, it is apparent, would materially affect defendant’s right of defence on the notes. But no question is made as to the manner of getting at this. The defendant pleaded in abatement to the petition, that plaintiff had no right to recover in his own name alone, and as for his own benefit, but that he held in a representative character, and must sue as such. The plaintiff took issue on this plea. The issue was found for the defendant, and then before judgment, the plaintiff asked leave to amend, which was granted; and to this the defendant excepted. The propriety of allowing this amendment at that stage of the suit, is the first question for our determination. In the case of Bebb v. Preston, as garnishee, 3 Iowa, 325" court="Iowa" date_filed="1856-12-15" href="https://app.midpage.ai/document/bebb-v-preston-7091157?utm_source=webapp" opinion_id="7091157">3 Iowa, 325, this court held, that an amendment may be made after the trial of an issue, and the cause has been taken to the Supreme Court and reversed, and sent back for a new trial. It is here that this militates against the common law ideas, but it is within the letter, and we believe within the spirit too, of the Code, § 1758. Our present system aims to get at the essentials of pleadings, and to allow amendments, rather than send a party out of court, subject, of course, to the terms which may be put upon him, which terms are entirely within the control of the court.
A party asking an amendment at so late a stage as in the present case, would naturally expect to pay the whole expense caused by the issue ; and what is the substantial difference between this and his taking a nonsuit and commencing again, except that by taking an amendment, rather than a nonsuit, time is spared, and an action or a cause of action is sometimes saved, which would otherwise be lost, as by a limitation, or by other cause; and this is the precise effect which we understand our present system of statute law, in relation to pleading, to aim at. It is to save the rights of persons, and not to have them sacrificed to the mere rules of pleadings, if they can be placed in a correct attitude, the
The plaintiff having amended, so as to show his trust or representative character, the defendant demurred to the petition as amended, on the ground that it did make a case which warranted the issuance of the writ of attachment. This demurrer then goes to the facts forming the basis for the attachment. These are not demurrable, for they do not touch the cause, or right of action. Our attachment law seems to recognize the praying for an attachment, either by separate petition or in the principal petition; but, in the latter case, these allegations no more form a ground for demurrer to the action, than in the former. In either case, if sufficient be not alleged, or if it be badly alleged, it is reached by a motion directed at the attachment. The demurrer was properly overruled.
The defendant then answered the amended petition, alleging that he did not owe the account; that the promissory notes were signed by him as accommodation notes only, for the benefit of St. Michael, who was the real debtor, and who put them in circulation; that the larger of said notes for $942, was afterwards taken up and paid by St. Michael; that the two notes for five hundred dollars each, came into the hands of Thomas & Hudson, who obtained payment of them by said judgment, and execution; and that the plaintiff did not hold these demands in his own-right, but as assignee of St. Michael, for the benefit of his creditors. To this the plaintiff replies, denying that the notes were given for the accommodation of St. Michael, and that he was the real debtor. He farther denies, that the two notes of five hundred dollars were paid by suit, &o., against this defendant, (Oollins,) and he avers that no suit or judgment, was ever commenced or re
Under these pleadings, on the trial the defendant offered in evidence the transcript of a judgment, rendered in Missouri, in relation to which, it is necessary to state the facts. The plaintiff, Hunt, St. Michael, with Thomas & Hudson, resided in St. Louis. St. Michael had indorsed the two notes of five hundred dollars, to Thomas & Hudson,' who commenced an action against Collins as maker, and St. Michael as indorser. No service on Collins was procured, he residing in Dubuque. Those plaintiffs discontinued the--action as against him, and took judgment against St. Michael. Exe cution issued, which is returned satisfied. On the trial of this action in Dubuque county, the transcript showing the above matters, was offered in evidence by Collins, the defendant. Being objected to by the plaintiff, Hunt, the court ruled it out. To this the defendant excepts. It was important to the defendant, that it should appear in some manner, either by his own pleading or by the plaintiff, (and might it not be made to appear in either way ?) that the plaintiff held as assignee, and not in his own right, for then he had only the rights of St. Michael, and defendant could show that they were accommodation notes; but for what does he wish to introduce the transcript of the judgment from Missouri ? It is to show that St. Michael had paid the notes. And of what consequence is this fact to the defendant ? The only important issue was, whether the notes were signed by him for the accommodation of St. Michael. If they were accommodation notes, then neither St. Michael, nor his assignee, Hunt, could recover against Collins, whether the former had paid them or not. It was immaterial to Collins, whether they were paid or not, and whether judgment'had been recovered on them against St. Michael, so far as regards the relations between them, the maker and payee.
On the other hand, if they were not accommodation notes, then St. Michael or his assignee, have a right to recover on them, whether paid to the indorsees of the latter or not. In other words, in the one case St. Michael could not recover
Another error is assigned on the following circumstances, The defendant gave notice to the plaintiff, to produce the original assignment from St. Michael. This not being produced on the trial, the defendant insisted, that such neglect or refusal, raised the presumption that the assignment contained something which would defeat the plaintiff’s right to recover, which point the court ruled against him, and he excepted. ¥e are not prepared to say, that the court erred here. It is very probable that such a refusal would, under circumstances, constitute an item to be considered, with others, by a jury, and from which they might make an inference, but we are not aware that there is such a definite and absolute inference of law, as is impliedly claimed. The neglect to produce, opened the door to secondary proof, but it is apprehended, that this was all the effect of it in the present case, when that circumstance stood alone, and that it did not of itself warrant the conclusion demanded by the defendant.
The foregoing thoughts cover the essence of the cause. As the issues formed, embraced the question of the accommodation character of the notes, and as that issue was found for the plaintiff, there is nothing of substance left, and the judgment of the District Court is affirmed.