White v. Hampton

| Iowa | Jun 25, 1859

StocktoN, J.

The leave to file an amended answer, in-eluded the right to withdraw the first. In this instance, the respondent did not ask leave to withdraw the original answer; but in so much as the amended answer covered the same ground, it is to be deemed a substitute for it, even though embracing additional matter.

The case involves the right of the respondent to put in a Sworn answer, although a sworn answer may be waived by the complainant. As was held in the case of Armstrong v. Scott, 3 G. Greene 433, we are of opinion that it is the right of a respondent, in every chancery proceeding, to put in his answer under oath. Of this right, he has not been deprived by the Code. So far as the provisions of the Code authorize the plaintiff in his petition, at his option, to require the answer of the defendant to be given under oath, (sec. 1744) it is to be deemed applicable to actions at law alone. In all suits in chancery, the well established rules applicable to such proceedings, when not changed by legislation, must be .considered as still in force.¹

The case does not stand on the same ground as that of De France v. Howard, 4 Iowa, 524" court="Iowa" date_filed="1857-07-01" href="https://app.midpage.ai/document/de-france-v-howard-7091270?utm_source=webapp" opinion_id="7091270">4 Iowa, 524. In that case permission was refused the respondent to file an amended answer. ■He was considered as having waived his right to put in an answer under oath, by putting in an, unsworn answer; and it was more than a year afterwards, that he asked to put in his answer under oath. In this case, it appears that the respondent asked and Obtained leave to put in an amended ansAver, 'as soon as the demurrer to the bill was overruled. When this leave was granted, he had the same right to swear to his amended answer, ;as he had to SAvear to his ansAver in the first instance. He is .not to be considered as having put in any answer, until the amended answer Avas filed. The ' Court might have refused permission to the defendant to amend his a,nsAver; or might have granted the permission on terms deemed proper. But when he had leave to file an amended an-SAver, he had the right to put in an ansAver under oath. This was allowed in tbe case of Brink v. Morton, 2 Iowa, 411" court="Iowa" date_filed="1856-06-15" href="https://app.midpage.ai/document/brink-v-morton-7091074?utm_source=webapp" opinion_id="7091074">2 Iowa, 411. The order and judgment of the District Court, striking out the jurat from respondent’s answer is reversed, and the answer must be taken and considered as a sworn answer.

Judgment reversed.

1 . See Sheppard v. Ford, June Term, 1860, in which it is held that the Code jprayides a uniform system of practice, applicable to both law and equity.