State ex rel. Dox v. Board of Equalization of Johnson County, 10 Iowa 157

State ex rel. Dox v. Board of Equalization of Johnson County

10 Iowa 157 | Iowa | 1859

Woodward, J.

It does not appear whether the court overruled the demurrer because the causes were deemed insufficient, or because it considered that the respondents could not demur to the information. We must presume, however, that the latter was the view of the court, since such is the law.

Regarding the information and the original notice under our law as answering to the rule to show cause under the common law, yet the defendant (if one be named as such) can not demur to the information and bring the cause to this court upon such demurrer. The information is to make known to the court the ground, of complaint and to ask the relief sought. It is, to inform the court, and the defendant can *160show such against the prayer as may be shown upon hearing, but the information is not such a pleading as may be demurred to. If the writ is granted, it is not required to be conformed to the information strictly, as the peremptory is to the alternative writ, but upon the information shown the court moulds the writ (or directs it moulded) to the case, although there is a degree, of course, beyond which the writ may not depart from the information. This is apparent from the nature and office of this part of the proceeding, &c.; in respect to some of the causes of demurrer now assigned, it is apparent from the consideration that the information need not (and properly should not) be entitled as of a cause. Chance v. Temple, 1 Iowa 184-5 ; Tapp, on Mand., 282.

The substantial objections of the defendant to be made in the nature of answer or pleading must be in the return to the alternative writ, and to this there may be a return in the nature of a demurrer. Tapp, on M. 362.

But, although the parties made defendant can not thus demur to the information, yet as some of the causes assigned relate to the practice in such cases, we may notice one or two of them.

It is true that the information should properly not be entitled of any cause, since it is only laying the matter before the court to obtain its direction, and no parties are yet made; still, if it be so entitled, this is but form and not a matter of substance on which error may be assigned. Chance v. Temple, ut sup. It is presumed that the court may order others to be made parties, and that this and other particulars do not become determinately fixed until they are embodied in the writ.

At the foot of the information is a jurat which is signed and sworn to by the relator, and it is objected that the information is a pleading distinct from the affidavit. This objection has no foundation. It is made undoubtedly, in reference to the remarks in Chance v. Temple, 1 Iowa 186, upon the information. These imply no rule concerning the separation of the information from the affidavit. Besides, this *161paper is .in exact conformity with section 2183, which enacts that the writ shall issue “on informations under oath.” The oath is written at the foot, forms a part of the paper, and constitutes it an affidavit.

Again, the information is not “a pleading founded on a written instrument or account,” within the intent of section 1750 of the Code, and therefore a copy was not required.

The other causes of demurrer can not well be noticed in the present attitude of the case.

The judgment of the District Court is affirmed.