37 Iowa 645 | Iowa | 1873
The statute provides that “ all matters of supplement or amendment, whether by addition or subtraction, shall be made, not by erasure or interlineation of the original, or by addition thereto, but upon a separate paper, which shall be filed, and shall constitute with the original but one pleading. But if it be stated in such paper, that it is a substitute for the former pleading, intended to be amended, in that case it shall be deemed such substitute, but the pleading superseded shall not be withdrawn from the files.” Revision, § 2983.
Tested by this provision of the statute, the amended answer filed in this case was not to be deemed a substitute for, and did not supersede, the original answer. Although it was entitled “ amended answer,” it did not state that it was or purport to be “ a substitute ” for the former pleading intended to be amended. It did not take the place of the original answer, and therefore both must be considered together. Pharo v. Johnson, 15 Iowa, 560. It is very evident that it was not the intention of the pleader in preparing the amendment that it should take the place of the original answer, but that it was for the purpose of making the first answer more specific.
II. The second assigned error is the overruling of appellant’s objection to the reading in evidence of the deed of plaintiff to the land on which the mortgage sought to be foreclosed was a lien. This objection is based upon the ground that the amended answer makes no reference thereto. It is properly referred to, however, in the original answer, and a copy thereto annexed. It was not necessary to refer to it again in the amendment.
III. The third, eighth and eleventh assigned errors may be considered together.
“Unless you find that a railroad company, duly authorized, to do business in the State of Iowa as a corporation, duly made application and instituted proceedings and caused the lands to be condemned, and subjected to their use as provided by law, you will find for the plaintiff on defendant’s claim for damages.”
The eleventh consists in giving the following instruction to the court, viz.:
“ Where proceedings have been had to assess the damages to the owner of land on account of the establishment of a right of way by a railroad company, and the jury appointed by the sheriff have made their report in writing and the damages have been paid to the sheriff as above indicated, it will be presumed that the railroad company was properly organized under the laws of Iowa to institute such proceedings until the contrary is made to appear in evidence.”
The record of the proceedings condemning the right of way in question, shows that the condemnation was made in behalf
Y. The court, on the question of the measure of damages, instructed the jury as follows:
This instruction was erroneous. The proper measure of damages is such sum of money which will put the defendant in as good a state in respect to the premises conveyed as if ■the plaintiff had kept his covenant against incumbrances. Funk v. Creswell, 5 Iowa, 62, and cases cited.
We do not find any error in any of the other assignments. For those above noticed, however, the judgment will be
Reversed.