Roland v. Brock

29 Iowa 284 | Iowa | 1870

Cole, Ch. J.

I. By answering over, the defendant waived any error there might have been is overruling his demurrer to the petition. This point has been so frequently decided that no reference to cases is needed. But the appellant insists that his demurrer raises a jurisdictional question, and that, therefore, by pleading over he does not waive the error. If the court could not, under any circumstances, have jurisdiction over the subject-matter of the action, this would be true, because it would have no power to decide the case, and its error in overruling the demurrer would not clothe it with power or jurisdiction to decide it. This was so held by this court in Smith v. Dubuque County, 1 Iowa, 494, and in Walters v. S. B. Mollie Dozier, 24 id. 192.

But, in this case, the general jurisdiction of the court is not and cannot be questioned ; it is simply claimed that a certain fact is pleaded or exists, which, if true, would oust it of jurisdiction.' Any alleged error of the court in deciding whether it is pleaded or exists, must be preserved and shown of record, like any other error.

II. Not having the evidence in the case before us, we cannot say that the judgment upon the merits was erroneous.

Affirmed.