90 Iowa 575 | Iowa | 1894
I. It appears from the pleadings in the ease that the plaintiff executed a chattel mortgage to the defendant hank, dated September 30,1889. In the month of October, 1890, the defendant demanded possession of the mortgaged property for the purpose of foreclosing the mortgage. The plaintiff refused to deliver the property, and the bank' commenced an action of replevin, and the property was seized and advertised for sale to pay the mortgage debt. So far as appears, the petition, bond, and writ in the replevin suit were in proper form. The mortgage debt was due and, on the face of the transaction, the bank had the right to foreclose its mortgage. This suit in equity was commenced to restrain and enjoin the foreclosure of the mortgage, upon the ground that nearly all of the amount of the mortgage debt was usurious. The defendants answered, denying the allegations of the petition as to usury, and the pendency of the action of replevin was pleaded as a defense. The plea of another action pending was full and explicit, and the pleadings in the replevin suit were introduced in evidence on the hearing. The question was fairly presented, but, so far as the record shows, no attention was given to it in the court below by the plaintiff, and, so far as we are advised, the action of replevin is now pending and un-disposed of.
One of the grounds of demurrer to a petition is “that there is another action pending between the same parties for the same cause.” Code, section 2648. The bank could not demur because the ground of demurrer did not appear on the face of the petition. In such case it is required that the objection shall be taken by answer. Code, section 2650.