68 Iowa 542 | Iowa | 1886
“ Due and legal service of the within notice accepted this twenty-eighth day of July, 1885.
[Signed] “ Steph. Bradley, Clerk.
“ By R. A. Korab, Deputy.”
We think both of these questions should be answered in the affirmative. It is provided by section 767 that “in the absence or disability of the principal, the deputy shall perform the duty of his principal pertaining to his own office.” Under this provision the deputy may, under the circumstances prescribed, perform any of the duties pertaining to the office. During the absence or disability of the principal, he stands in the place of the principal, and any official duty performed by him is regarded as having been performed by the principal. It must often happen that, owing to the absence or disability of the clerk, it would be impracticable to serve the notice on him personally within the time allowed by the statute for taking the appeal, and, if the service may not be made on the deputy, it would follow in such cases that the right of appeal would be defeated by circumstances over which the party could have no control. The right is conferred by statute, and is regarded as an important and valuable right, and we cannot think that it was the intention of the legislature, when it created the provision making the service of the notice on the clerk an essential step in perfecting the appeal, that it should be defeated by his absence or disability to perform the duties of his office, and we prefer to accept a construction of the statute which will secure the right, rather than the one which, in many cases would defeat it.
Having regard, then, to the spirit, rather than the strict letter, of the law, we hold that the notice of appeal may properly be served upon the deputy during the absence or disability of the clerk. The statute makes no provision as
It will be observed that plaintiff’s request was for leave to plead (1) a contract which was entered into before the suit was instituted, by which the intervenor waived the claim set up in his petition; and (2) matters'which occurred after the rendition of the former judgment, and before its reversal, and which he claims now constitute an equitable defense to said claim. The action is in equity, and if the original judgment was on the merits, and was rendered on a full hearing on the evidence, it was triable de novo in this court on the former appeal. It has been held, however, in actions of that character, when the cause is remanded for judgment in the lower court, that the parties may be permitted to introduce material evidence which has been discovered since the original trial; also that they may set up matters materially affecting the merits of the cause which have occurred since the former trial; and that the amendment to the pleadings neeessary for this purpose may also be made. Adams Co. v.
Plaintiff contends that the original judgment, so far as it determined the rights of the intervenor, was not rendered on a hearing on the evidence, but that the questions were raised by the written objections filed by intervenor to the amended petition, which was merely in the nature of a demurrer; and therefore he had the right to answer intervenor’s petition after the questions raised by the demurrer were decided. But this positiou is not correct. The paper denominated “Exceptions to the Prayer of the Amendment to the Petition” was not a demurrer, nor was it treated as such by the parties or the court. It was a “ nondescript,” and might well have been disregarded or stricken from the files. The facts upon which intervenor’s claim was founded were set out in the petition. The record shows that the cause was heard upon the evidence introduced by plaintiff, and upon that evidence it was adjudged that plaintiff was entitled to the judgment prayed for in his petition, and the amendment thereto, and intervenor’s petition was dismissed, and lie was denied the relief demanded. It clearly appears, we think, that the j udgment was rendered upon the pleadings as they then stood, and the evidence. It was a final judgment on the merits of the case, and it makes no difference, we think, that plaintiff was not directed by the court to answer the intervenor’s petition. He might have answered it without such direction. He chose, however, to submit the case without answering it.
On this state of the pleadings, the allegations of intervenor’s petition were taken as admitted, and the district court determined that upon the pleadings as they stood, and the evidence introduced by plaintiff, the intervenor was not entitled to relief. After thus submitting the case, we think it clear that plaintiff was not entitled, after the reversal of the judgment, to set up the alleged agreement in avoidance of intervenor’s claim.
An error was committed by the district court in computing the amount due on the bonds held by intervenor. The parties agree that the judgment is for $642.95 in excess of the real amount due, and intervenor, has filed an offer to remit that amount. The judgment will therefore be modified in that respect; but, as no motion was made by appellant in the district court for the correction of this error, which was probably committed by the clerk, the costs of the appeal will be taxed to him.
Modified and Affirmed.