67 Iowa 57 | Iowa | 1885
Plaintiff brought this action on a policy of insurance. Defendant answered, admitting the execution of the contract but alleging that it contained a provision that the commencement of foreclosure or other proceedings upon any mortgage, lien or incumbrance of any kind, or of any suit or action in any court concerning the title in any wise, should immediately render the policy void; and that, subsequent to the execution of the policy, foreclosure proceedings were commenced on a mortgage covering the property insured. To this answer plaintiff filed a reply, in one paragraph of
Defendant’s first position is that, by its motion to direct a verdict in its favor on the trial of the cause at the conclusion of plaintiff’s evidence, it admitted every fact which the evi
The next position of counsel is that by this admission the case was put in precisely the same position it would have occupied if the same facts had been established by a special finding by the court or jury after full submission, and hence the case is within the rule laid down in Roberts v. Corbin, 28 Iowa, 355, viz.: that “where a judgment of the district court, rendered upon a special finding of facts, is appealed to the supreme court, and there reversed on the single ground that the law as applied to the facts as thus found is with the appellant, and the cause remanded, with directions to the district court that further proceedings be had therein not inconsistent with the opinion of the supreme court, the appellant is entitled to judgment therein in the district court, and no new trial can be had.”
If we were to concede counsel’s premises, his conclusion wmuld follow necessarily. We think, however, that he is wrong in his premises. The case is not in the sathe position as it would occupy if the admitted facts had been established by a special finding upon a full submission. The real question presented by defendant’s motion to direct the jury to find for it was whether, under the reply, it was required to prove its affirmative defense before plaintiff was called upon to establish the matter pleaded in avoidance of that defense. If the court had sustained the motion and held that the facts constituting the affirmative defense were admitted by the reply, it clearly would have been within its discretion, before receiving the verdiat, to have permitted plaintiff to introduce evidence to establish the matter in avoidance. It is common practice in the nise_prius courts to permit parties to introduce material evidence at any time before verdict, which has been omitted by mistake or inadvertence, and this practice
The order of this court reversing the ruling of the district court on the motion to direct a verdict placed the case in the same position it would have occupied if the district court had sustained the motion. The order appealed from will therefore be
Affirmed.