10 Iowa 157 | Iowa | 1859
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
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
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.