McCormick v. Blossom

40 Iowa 256 | Iowa | 1875

Day, J.

A party may demur to a petition wliere it appears upon its face that there is a defect of parties, plaintiffs or defendants. Eevision, § 2876; Code of 1873, § 26i8.

When any of the matters enumerated as grounds of demurrer do not appear on the face of the petition the objection 1. parties: demurrer! may be taken by answer. If no such objeetion is taken, either by demurrer or answer, it shall be deemed waived. A dilatory defense is not favored, and the party who is entitled to avail himself of it must interpose it promptly, and in the manner required.

From the above statutes it is apparent that a party is authorized to make the objection of a want of parties in the answer, only when the defect does not appear on the face of the petition. If the defect is apparent upon the face of the petition the objection can be taken only by demurrer. See Dennison v. Dennison, 9 Howard Pr. R., 246; Zabriske v. Smith. 13 N. Y., 322; Bidwell v. Astor Ins. Co., 16 N. Y., 266; Merrit v. Walsh, 33 N. Y., 685; De Puy v. Strong, 37 N. Y., 372.

Appellee claims, however, that as to the dower interest of Ellen Levins, the petition does not show that it was an estate 2 Pleading • construction. *n an(^ that tact was not disclosed until s]ie testified upon the trial. The position is not sound. The dower interest, at the time the petition was filed, was an estate in fee, and had been for eleven years. See Ohap. 152, Laws Ninth General Assembly. The presumption is that the petition referred to conditions existing at the time it was filed, rather than to conditions which had ceased to exist many years before. When the petition alleged that Ellen Levins was entitled to dower, and was silent as to the time when the dower right attached, it alleged in effect that she -was entitled to the kind of dower estate at the time recognized by the law. The defect of parties, so far as the same .arises fro til the dower estate, was apparent upon the face of the petition, and the objection, not having been taken by demurrer, is waived. .

II. ' The answer also alleges a defect of parties, because the property in question is -tbe homestead of Ellen Levins. It 3. practice: parties. ’ may be conceded that this defect does not appear .upon the face of the petition, and that it was properly raised by answer. The answer is in the nature of a plea in abatement. It presented an issue to be tried in the ordinary way. Rev., §§ 2969 and 3124; Code of 1873, §§ 2732 and 2851. The court had no right, upon the mere filing of the answer, to dismiss the cause of action. Enders v. Beck, 18 Iowa, 86. This position is also apjdicable to the deiensd considered in the first branch of this opinion.

REVERSED.