27 Iowa 315 | Iowa | 1869
The supersedeas bond, bearing the same date as the notice of the appeal, recites expressly that Traer alone has appealed.
The railroad company is not therefore before us, and we turn to the only appellant who has a right to be heard.
To appellee’s first position the appellant says, that the statute (Rev. § 3545) does not apply to such a case ; and that if it does, chapter 49, Laws of 1866, gives the right to review the case here without further or other proceedings in the court below. The statute is, that a judgment or order shall not be reversed for an error which can be corrected, on motion., in the inferior court, until such motion has been made there and overruled. Section 3545.
Advancing one step further, we see no escape from the conclusion that the same rule applies to the other part of the objection made by appellant. If the petition was defective in substance or form, so defective that it failed to show a cause of action, what more reasonable than that a motion should be made as contemplated by this statute for the correction, of the error in the inferior court.
The objection made there, plaintiff could have amended his petition. And whether he could or could not so amend as to show a good cause, is not now the question before us. If it wras an error it could have been there corrected. If so, then the statute is that in that court the party should have gone for his remedy in the first instance. Than this nothing can be plainer.
If the statute is to have any practical force it applies to just such a ease.
And see Crossen v. White, 19 Iowa, 109, and cases there cited.
We are then left to inquire what effect, if any, the statute of 1866 (ch. 49, p. 43) has upon the section under consideration.
The intention was to obviate the necessity of this; but the necessity of a motion to correct the errors, contemplated by section 3545, is in no manner removed by the new statute.
This is obvious enough from the language used and the whole purpose and scope of tlie enactment.
The judgment is
Affirmed.