Anderson Savings Bank v. Hopkins

• Decision Date: 03 April 1923
• Docket Number: 34454
• Citation: 192 N.W. 824,195 Iowa 655
• Parties: ANDERSON SAVINGS BANK, Appellee, v. H. H. HOPKINS, Appellant
• Court: Iowa Supreme Court

192 N.W. 824

195 Iowa 655

ANDERSON SAVINGS BANK, Appellee, v. H. H. HOPKINS, Appellant

No. 34454

Supreme Court of Iowa, Des Moines

April 3, 1923

Appeal from Fremont District Court.--O. D. WHEELER and J. B ROCKAFELLOW, Judges.

ACTION on a promissory note. A directed verdict was entered on motion of the plaintiff at the conclusion of defendant's testimony and judgment entered against the defendant for costs. Defendant appeals.

Affirmed.

North & Donovan and Vernon Johnson, for appellant.

Kimball Peterson, Smith & Peterson and Thornell & Thornell, for appellee.

DE GRAFF, J. PRESTON, C. J., WEAVER and STEVENS, JJ., concur.

OPINION

DE GRAFF, J.

This appeal involves the correctness of the ruling of the trial court in directing a verdict for the plaintiff, who, as indorsee stated a cause of action against the defendant, as maker of a certain promissory note, in the sum of $ 2,500. Defendant in answer denied the material allegations contained in the petition, and specifically pleaded fraud in the inception of the note. Attacks by motion were made respectively by plaintiff and defendant, and in these preliminary skirmishes plaintiff was the primary aggressor. Resulting from plaintiff's motion to strike certain allegations of the defendant's answer an amended and substituted answer was filed which was subject to further motions to strike and for more specific statement. In compliance to the ruling of the trial judge thereon defendant filed a second amended and substituted answer to which an amendment was made before trial. Thereupon plaintiff filed a reply in which it is alleged that plaintiff is a holder in due course predicating its status by a recital of facts in conformity to the essential elements defined by the statute. Defendant interposed a motion to strike the reply which was overruled by the court. The issues having thus been joined trial was had. Plaintiff introduced the note in evidence and rested. This was all the law required him to do at this stage of the proceeding. The note in suit was order paper, negotiable in form, duly indorsed, and in the possession of the indorsee who was plaintiff in the action.

The defendant then took the burden of proof to establish the fraud pleaded in his answer. Unless the essential elements of the fraud pleaded were established by the defendant the plaintiff was not obligated under the provisions of the statute to assume the burden to sustain the allegations in its reply.

The primary errors relied upon for a reversal involve (1) the rulings of the court on the motions of the plaintiff to strike certain allegations contained in the answer and in the first amended and substituted answer of the defendant and (2) the sufficiency of the proof offered by the defendant to sustain his allegations of fraud.

The first proposition suggests no difficulty of solution. The second amended and substituted answer was filed presumably in conformity to the rulings of the court on plaintiff's motion to strike certain matters from the answers previously filed. It must be said that the issues embodied in the second amended and substituted answer to plaintiff's petition are the only ones tendered by the defendant in this case. The several assignments of error based on the rulings of the court in sustaining plaintiff's motions to the previously filed answers of the defendant are not subject to review by this court. Defendant attempted to comply with these rulings by pleading over, and regardless of the correctness of the rulings of the trial court, the error if any must be considered waived. This is the intendment of the law. If error, it is not reversible error. This court has repeatedly affirmed this doctrine. In brief, a substituted pleading supersedes all other and prior pleadings of the same character and caliber.

We now turn to the second point on this appeal. Did the defendant establish the fraud pleaded? It may be stated that the allegations of fraud per se are sufficient to constitute a defense as a matter of pleading. Pleadings are not proof. We must therefore critically study the record to determine whether the plea has been sustained by the evidence.

We deem it unnecessary to incumber this record with the numerous allegations of fraud or the evidence offered in support thereof. Fraud pleaded as a...