Wilcox v. Jackson
Decision Date | 09 December 1881 |
Citation | 10 N.W. 661,57 Iowa 278 |
Parties | WILCOX v. JACKSON |
Court | Iowa Supreme Court |
[Copyrighted Material Omitted]
Appeal from Monroe Circuit Court.
THIS case was before us on a former appeal. See 51 Iowa 296, to which, for a statement in part of the case, reference is here made. The cause having been remanded to the court below, the defendant filed an amendment to his counter-claim as follows "That there are equitable circumstances entitling the defendant to relief and that the counter-claim though not proved within one year after the giving notice by the administratrix of her appointment is not barred.
Said equitable circumstances are as follows: Defendant filed said counter-claim in the office of the clerk of this court on the 27th of February, A. D. 1877, before the expiration of one year from the giving of notice aforesaid by the administratrix, duly sworn to as the law requires. That it was filed in the form it now appears, as the counter-claim in this case that was then pending; that the plaintiff was at that time present and in court appearing to the counter-claim.
That on the first day of March she filed a reply to the counter-claim denying each and every allegation therein; that this was still within the year from the giving notice by the administratrix; that no objection was made to the time of filing the claim or that it was barred. Defendant further states that the one year from the giving of said notice expired on the 2d day of March, A. D. 1877.
He further states that had not the plaintiff filed a reply on the 1st of March, and interposed this as an obstacle to the proof of the claim he would have proved it within the year. So he says that it is owing to the plaintiff's own act as aforesaid that the defendant was prevented from proving up said claim. He further states that had he filed the counter-claim for the September term, 1876, he could not have proved it at that term owing to the number of cases on the docket and amount of business before it, and the cause would have had to be continued, as it in fact was, and it would not have been proved.
Defendant further avers that the reason the case was not tried at the February term, 1877, was owing to the reply filed by the plaintiff raising the general issue and the press of business in court having precedence on the docket. He further states that ever since the filing of the counter-claim he was ready willing and anxious to try said case and prove it, and it was not through any hesitation, tardiness or delay on his part that it was not proved at once and before the year expired.
And defendant states that it was not until at the September term 1877, on the first day of October, the plaintiff thought of interposing the plea of the statute of limitations. On that day for the first time the plaintiff interposed the defense to the said counter-claim and filed an amendment to the reply, and still the case could not be tried at that term owing to the resistance of the plaintiff as aforesaid and the amount of business in court having precedence.
That it was not through any fault of defendant that it was not tried and it was continued to the February term, A. D. 1878.
So the defendant says he filed the claim within the year and but for the resistance of the plaintiff would have proved it within the year, and he insists that he should not be deprived of the right of recovery when the delay was caused by the plaintiff and the press of other business in the court.
The defendant filed a demurrer to this amendment to the counter-claim, which the court overruled. The defendant also filed a further amendment to his counter-claim, as follows:
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