10 Iowa 76 | Iowa | 1859
Lead Opinion
The motion for the change of venue was overruled, for the reason that the defendant did not show that the cause alleged had come to his knowledge since the last continuance. This, it is admittedJie was required to do,
According to the rule recognized in Stacy & Thomas v. Stichton & Co., 9 Iowa 399, the issue was complete without the replication, and the application as a consequence -was too late. Wo think that case, in its principle, governs this.
Judgment affirmed.
Dissenting Opinion
dissenting. — I think the plea of payment in this instance, was an affirmative allegation to which the plaintiff was required to reply, either by an admission or denial; and in default of a replication, it was to be taken as true. There was no other answer by the defendant, except the pica of payment, and no other issue tendered to be joined by the plaintiff. When such is the case, I think the better rule is that the plea of payment sho.uld be denied.
In Stacy & Thomas v. Stichton § Co., 9 Iowa 399, decided at this term, there was another answer filed, putting in issue all the averments of the petition. In such case the additional plea of payment, in my opinion, is not such an affirmative allegation as should be responded to, because it does not make any new or different issue from that already joined between the parties.
It is not every affirmative allegation of the petition that the defendant is required to deny. But only such as should be responded to in order to make an issue, which if not denied must be taken as true. Code section 1742. In the case cited I think it was not necessary that the plea should have been replied to in order to form an issue; but in the present case, I think it was necessary that the plea should be replied to. As no replication was put in until the term succeeding the filing of the answer, the defendants ap: plication for a change of venue was in due time.