4 Iowa 453 | Iowa | 1857
The answer, filed in April, 1857, sets up some of the same matters of defence as are contained in the one filed in March, 1855. The defendant, in the last answer, attempts to plead these matters in a more logical and definite form; and we need not, therefore, stop to inquire into the sufficiency of these portions of the first answer. By filing the further and additional answer, and thus, in effect, in this case, amending his former pleadings, defendant waived all right to complain of any supposed error in the ruling, made on the first demurrer, so far as that demurrer raised the same questions as were raised by the second one.
The questions raised by the demurrer, and motion to strike the second or last answer, may be considered under two heads: First, such as relate to those portions which were set up in the answer, filed March 26, -1855. Second, such as relate to the new and distinct grounds of defence, therein contained. In the third clause of his answer, defendant sets up that said words, charged in plaintiff’s petition, if spoken by him, were spoken at a time when plaintiff was speaking and uttering false and scandalous words about defendant, (giving the words spoken by plaintiff,) and at a time when defendant was angry and in a passion, occasioned by the speaking of said false and scandalous words by plain
In the case before us, as these matters were set up, we think the court might well have overruled the demurrer, upon the ground that plaintiff could not complain, if by such answer, he was notified that defendant would insist on the trial, that the words were spoken under the circumstances stated. But as the thing, if proved, could not bar plaintiff’s recovery, but might under the general denial of the speaking of the words, be received in mitigation of damages, we cannot say there was error in sustaining the demurrer to this portion of the answer. If it appeared that defendant proposed to prove the same facts on the trial, and was not permitted to do so, the question would be quite different. Nothing of the kind is shown, however. Eor aught that is disclosed, he had the benefit of all these circumstances on the hearing before the jury. There was certainly nothing to prevent it.
We are next to inquire, whether there was error in suppressing the deposition of the witness Laforce. It seems that plaintiff was notified that the deposition of this witness,' would be taken at the office of Squire Moore, in Ashland, Wappello county, Iowa, on the 10th day of April, 1857. The caption and certificate attached to the deposition, show that it was taken on the same day named in the notice, at the office of Enos Moore, a justice of the peace of Wappello county. The objection urged is, that it does not appear that the deposition was taken at the office of Squire Moore, as stated in the notice, but that, on the contrary, 'it was taken at the office of Enos Moore. The Code provides that reasonable notice of the time and place where a deposition will be taken, must be given to the opposite party; and the certificate to be attached to the deposition,-when taken, must state that it was subscribed and sworn to at the time and place therein mentioned. §§ 2446, 2458. We need hardly say, that the deposition must, in the absence of agreement or consent, express or implied, to the contrary, be taken at the place named in the notice, and that if taken at any other place, it should be suppressed. The question in this case is whether, (plaintiff not having appeared or taken part in the examination,) it sufficiently appears that this deposition was taken at the place named in the notice. And to hold that it does sufficiently appear, we are asked to conclude or presume that Squire Moore and Enos Moore are one ■ and the same person, and that the office of Squire Moore is the office of Enos Moore. We think that this would be asking us to presume too much. The objection of- plaintiff may in fact be purely technical, and yet we cannot think we would be justified in holding the persons to be the same. If .the notice had designated the magistrate as Esquire Moore, there would be less force in the plaintiff’s objection. By such a
The defendant asked the court to instruct the jury, that if the words were spoken by defendant through heat of passion, caused by harsh and abusive words used by plaintiff towards defendant, then the words are not actionable, and they must find for defendant, and this refusal is now assigned for error. We have already, in considering the demurrer to the third clause of defendant’s answer, sufficiently disposed of this objection. However much such passion and provocation might operate to mitigate the damages, they could not wholly defeat plaintiff’s action. It is next objected that the court instructed the jury, that it was not necessary for plaintiff to prove the precise words as laid in the petition, but that it was sufficient to prove them substantially as there set out. That this is the rule now universally recognized in actions of this kind, we understand to be well settled. Olmstead v. Miller, 1 Wend. 506 ; Bassett v. Spofford, 11 N. H. 127; Leniville v. Earlywine, 4 Blackf. 470; Starkie Ev. Vol. II, 618, 619, and notes.
When the jury were about to retire to consider of their verdict, the defendant asked that they might be permitted to take all the papers in the case, except depositions, and particularly the affidavits filed by plaintiff at previous terms, for a continuance. The court refused, however, to permit this, and retained these affidavits, as also all the pleadings to which demurrers had been sustained, and defendant again excepted. The Code provides that the jury upon retiring for deliberation, may take with them all pa
We have thus disposed of all the errors assigned, and conclude that the judgment of the court below must be affirmed.