61 Iowa 398 | Iowa | 1883
■ We come next to consider whether the defendants are entitled, to insist upon tiffs defense in the present condition of the case. They did not demur to the plaintiffs’ petition, but made return to the writ, and proceeded to a hearing upon the petition and return and a certain agreed statement of facts; the plaintiffs having first filed a written motion for ■judgment, and the defendants having filed a written motion to quash the writ and dismiss the petition. Appended to the defendants’ motion is a statement of various reasons why the writ should be quashed and the petition dismissed, being in effect a brief legal argument. In this argument the point is •not' made that there is a misjoinder of plaintiffs or of causes of action. We do not think, however, that the defendants •are precluded from insisting upon the point now. It may be that if they had been unsuccessful, and were now appellants, they could not be allowed to insist upon it as a ground of reversal. But the case is quite different when all they ask is that the action of the court below should be sustained. It is said in equity practice that “where the defendant omits to demur for multifariousness, the court may sua sjponte take
It is not bound to grant the writ on mere technical grounds, and where no prejudice is shown. See Johnson v. Board of Supervisors, ante, p. 89, and cases cited. It Was proper for the court to take all these matters into consideration, as we have no doubt it did, and we are not able to say that its action in quashing the writ was not a proper exercise of its discretion in view of the whole case.
Affirmed.