Townsend v. Wisner

• Decision Date: 30 January 1884
• Citation: 18 N.W. 304,62 Iowa 672
• Parties: TOWNSEND v. WISNER.
• Court: Iowa Supreme Court

62 Iowa 672

18 N.W. 304

TOWNSEND

v.WISNER.

Supreme Court of Iowa.

Filed January 30, 1884.

Appeal from Hardin circuit court.

Action upon covenants of warranty. Judgment was rendered for the plaintiff, and the defendant appeals.Porter & Albrook, for appellant.

Tom H. Milner, for appellee.

ADAMS, J.

The defendant demurred to the plaintiff's petition. The plaintiff filed a motion to strike the demurrer from the files. The court, upon hearing, overruled the motion. Afterwards the plaintiff called up the motion again for hearing, and the court sustained the motion, and ordered that the demurrer be stricken from the files, to which action of the court the defendant excepted. The case in that condition was referred to a referee. No answer was filed. A hearing was had before the referee,--at which, however, the defendant did not appear,--some evidence was taken, and a report filed by the referee in favor of the plaintiff, which the court affirmed. Several questions are presented by the defendant, but it will, we think, be necessary to consider but one, and that arises upon the action of the court in reference to the motion to strike the demurrer from the files.

The motion to strike having been overruled, it appears to us that it was no longer pending, and was not subject to be called up again at the pleasure of the plaintiff and reheard, so long as the order overruling it stood. The correct practice on the part of the plaintiff would have been, we think, to have filed a motion to set aside the order setting out the grounds of the motion, and serving a copy on the other side, if required to serve such copy by the rules or practice of the court. If the order had been set aside the motion would again be pending, to be disposed of in such way as the court should deem proper. If a motion which has been disposed of can be called up once by the...