Judd v. Hatch

31 Iowa 491 | Iowa | 1871

Miller, J.

— The order of the court sustaining the second motion of the defendants to dissolve the injunction was clearly erroneous. Not a .single fact averred in the plaintiff’s petition was denied in the answer. The facts alleged in the petition, if true, entitled the plaintiff to a perpetual injunction. They were admitted by the pleadings to be true, and the defendants only sought to avoid their legal effect by pleading affirmative matter. Upon the defendants rested the onus of proving the facts pleaded.by them. As the pleadings stood, without proof, tbe plaintiff would have been entitled to a decree perpetually enjoining the sheriff’s sale, and yet, without any evidence whatever, and upon the pleadings as they stood, the court dissolved the injunction.

The appellees insist that the fourth clause of their answer, “ denying that said premises are exempt from levy and sale on execution of defendants, as the homestead of the plaintiff,” was a denial of the material facts averred in the petition, and that the injunction was, therefore, properly dissolved.

A sufficient answer to this is that the defendants, by their answer, first expressly admit all the -alleged facts of the petition, from which the law draws the conclusion that the property is exempt from execution as plaintiff’s home, stead. This denial is simply of that conclusion of law, and not of the facts alleged by plaintiff.

The judgment of the district court is

Reversed.