81 Iowa 365 | Iowa | 1890
Chapter 45, Acts, Twentieth General Assembly, requires that notices of ownership of property held by
Without now determining whether the notice or service was sufficient, we inquire whether appellant waived these objections by failing to demur or move in arrest of judgment. The answer denies the service of notice, “in the manner and form prescribed bylaw,” but the authority to object by answer is limited to cases where the grounds of objection do not appear upon the face of the petition. The inference is plain that the objection cannot be made by answer when the grounds do so appear. The provision, that, if no such objection is taken, it shall be deemed waived, surely means that if it be not taken by demurrer, when that is the proper mode, or by answer, when that is proper, it is waived. McCormick v. Blossom, 40 Iowa, 256; Roop v. Seaton, 4 G. Greene, 252; Ryan v. Mullinix, 45 Iowa, 631. By the denial in the answer these objections were not properly raised.
A motion for new trial is quite different from, and in no sense equivalent to, a motion in arrest of judgment. The purpose and effect of such motions are widely different. The motion for new trial, though based in part upon these alleged errors, cannot be considered
The rule, that objections not properly taken are deemed to be waived, is recognized in a number of the decisions of this court. In Murphy v. Creighton, 45 Iowa, 179, which was an action to recover back money paid by mistake, question was made whether mistake was alleged. The court says: ‘‘No objection was taken to the petition by motion, demurrer or in arrest of judgment, and we must hold that such objection was waived.” Great Western Printing Co. v. Tucker, 73 Iowa, 755, was an action upon a settlement. Defendant pleaded a counterclaim accruing before the settlement, to which plaintiff replied. Question was made as to defendant’s right to so plead. The court says : “The fact that he [plaintiff] took issue thereon, and went to trial without objection to the pleadings, and by a mere clenial of the facts set up therein, leads to the conclusion that it was the purpose of the defendant to waive any objection to the pleading. At least this must be so in the absence of a motion in arrest of judgment.” “Plaintiff” was evidently meant where the word “defendant” appears last above. See, also, Veach v. Thompson, 15 Iowa, 380; Egleston v. Brassfield, 38 Iowa, 698; Draper v. Ellis, 12 Iowa, 316; Nollen v. Wisner, 11 Iowa, 190; Wimer v. Allbaugh, 78 Iowa, 79; Seymour v. Shea, 62 Iowa, 708; Smith v. Burlington, C. R. & N. Ry. Co., 59 Iowa, 73; McKinley v. Chicago, R. I. & P. Ry. Co., 47 Iowa, 76; Olson v. Neal, 63 Iowa, 214; Hanks v. North, 58 Iowa, 396; Melick v. First Nat. Bk. of Tama City, 52 Iowa, 94.