Scott v. Morse
| Decision Date | 20 October 1880 |
| Citation | 54 Iowa 732,7 N.W. 15 |
| Parties | SCOTT v. MORSE. |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie county.
On rehearing.
Within the time authorized the defendant filed a petition for rehearing, in which it is urged that in the former argument in this case it was maintained that the case of Parker v. Hendric, upon which the foregoing decision is based, is not applicable, because it was decided under the Code of 1851, which did not authorize the general issue, whereas under the Code of 1873 the general issue is authorized, and that this point in the argument is not noticed in the opinion. The Code of 1873, § 2655, authorizes a general denial of each allegation of the petition, but it does not authorize anything corresponding to the general issue at common law. Under our system of pleading, the general issue, as it existed at common law, is unknown. Under the general denial authorized by the Code no affirmative defence can be proved. Section 2704 of the Code provides: “Under a denial of an allegation no evidence shall be introduced which does not tend to negative some fact the party making the controverted allegation is bound to prove.” The only facts which the plaintiff is bound to prove, in order to entitle him to recover, are the rendition of the services by Montgomery & Scott, their value, and that the claim has been assigned to plaintiff. Under the general denial of the answer no evidence is competent which does not tend to negative one of these facts. It is evident that evidence tending to show an agreement of Montgomery that the firm should render the service without charge is not of that character.
It is claimed further that it has been held that a party cannot, in this court, claim and take advantage of the fact that the immaterial evidence and erroneous instructions have gone to the jury, unless he objected and took exceptionsat the proper time in the court below. In support of this position Harvey v. Savery, 48 Iowa, 313, is cited. It is true, as appellant claims, that it has been held that a party cannot, in this court, for the purpose of reversing a judgment, take advantage of the fact that immaterial evidence and erroneous instructions have gone to the jury, unless he objected and excepted at the proper time. This is upon the well-settled doctrine that a case will be reversed only for an error raised and urged in the court below. The principle upon which this decision is based is essentially different...
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In re Estate of Rule
... ... 3340); but the same statute expressly provides that ... "special defenses must be pleaded." See also ... Scott v. Morse , 54 Iowa 732, 6 N.W. 68; ... Schroeder v. Schroeder , 119 Iowa 67, 93 N.W. 78; ... Saddler v. Pickard , 142 Iowa 691, 121 N.W. 374 ... ...
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State v. Carlson
...court to unhesitatingly set it aside. Fawcett v. Woods, 5 Iowa 400; Smith v. Williams, 23 Iowa 28; Scott v. Morse, 54 Iowa 732, 6 N.W. 68, 7 N.W. 15; Baldwin v. St. Louis, Keokuk & N.W. R. Co., 63 210, 18 N.W. 884.To meet the above pronouncement the appellee cites State v. Kendall, 200 Iowa......
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Baisch v. Mueller
...Iowa 67, 93 N.W. 78. This was but a recognition of a principal theretofore announced in that state. Scott v. Morse, 54 Iowa 732, 6 N.W. 68, 7 N.W. 15. This principle, as recognized by the Iowa court, applicable here, as well as sound. It seems to be generally recognized when a defendant int......
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Rule v. Carey
...but the same statute expressly provides that “special defenses must be pleaded.” See, also, Scott v. Morse, 54 Iowa, 732, 6 N. W. 68, 7 N. W. 15;Schroeder v. Schroeder, 119 Iowa, 67, 93 N. W. 78;Saddler v. Pickard, 142 Iowa, 691, 121 N. W. 374. Precedents to the same effect are numerous in ......