286. Where an answer pleads new affirmative matter as a defense, but does not set up any counter-claim, set-off or cross-demand, no replication is necessary under our system of pleading. An issue is formed on the averments of the answer by operation of law, and the plaintiff may meet it by any evidence, either negative or affirmative, or both, that will defeat its effect. Barger v. Farris & Wilmer, 34 Iowa, 228. 287. Nor is it necessary under this rule for the plaintiff to amend his petition so as to set up fraud as a defense to the matters contained in the answer. Ibid. 288. The allegation of new matter in an answer not in the nature of a cross-action is to be deemed, without a replication, as controverted by a general denial or by matter in avoidance, and under an issue thus joined the plaintiff may rove facts not set out in the pleadings, but which would tend to obviate or avoid the legal effect of the special matter set out in the answer. Davenport Savings Fund and Loan Association v. The North American Fire Insurance Co., 16 Iowa, 74. 289. Fraud. It is not necessary for a plaintiff, in order to avoid on the ground of fraud a defense to which no replication is allowed by our practice, to amend his petition and set up the fraud. Noble v. The Steamboat Northern Illinois, 23 Iowa, 109. 290. Former adjudication. A replication is allowable only when a counter-claim, set-off or cross-demand is alleged in the answer; and it is not necessary to set up a former adjudication specially as a replication to defendant's answer to lay the foundation for evidence thereof responsive to the defense set up by such answer. Carleton v. Byington, 24 Iowa, 172. c. Generally. 291. Sufficiency of denial. A replication is demurrable if it does not traverse the material allegations of the plea. Roberts v. Albright, 2 G. Gr. 120. In General. ficient denial of a set-off filed by the defendant. Godfrey v. Cruise, 1 Iowa, 92. 293. A replication is not necessary to complete the issue where it is fully joined by petition and answer. Ford v. Wescott, 3 Iowa, 286. 294. Where the plaintiff, in the trial of a cause, treats his replication as denied, he cannot, after verdict, claim that it should have been taken as true. Hendricks v. Rippy et al., 9 Iowa, 351. V. DEMURRER.* a. In general. 295. Effect of. A demurrer admits all facts set out in the pleading against which it is directed, which are well pleaded. Lyon v. O' Kell, 14 Iowa, 233; Hartford Bank v. Green, Thomas & Co., 11 Ibid. 476; Babbitt v. Walters, 3 G. Gr. 564; Merritt v. Daniels, 10 Iowa, 196; Sleeth v. Murphy, Mor. 321. But it does not admit the correctness of the conclusions of law therein set out. Smith v. Henry County, 15 Iowa, 385. The following are the provisions of the Revision of 1860, respecting demurrer. They are et seq., Code of 1873, p. 449. with some changes, reprinted as section 2648, SECTION 2876. The defendant may demur to the petition only where it appears on its face, either, 1. That the court has no jurisdiction of the person of the defendant or the subject of the action; or, 2. That the plaintiff has not legal capacity to sue; or, 3. That there is another action pending between the same parties for the same cause; or, 4. That there is a defect of parties, plaintiffs or defendants; or, 5. That the petition does not state facts sufficient to constitute a cause of action, or that it states some fact which avoids the cause of action; or, 6. For causes stated in sections 2918, 2920, 2961, 2963, of this chapter. (The sections here referred to are as follows): SEC. 2918. If the action, set-off, counter-claim, or cross-demand, is founded on an account, a bill of particulars must be incorporated into, or attached to, and filed with the pleading, or such pleading will be verified by the pleading. And if the same be not be demurrable, and if not incorporated into it, must a statement of such particulars as may be necessary to give the court and the other party, reasonable knowledge of the nature and the grounds of the cause of action, set-off, counter-claim or cross-demand, the court may, on motion, order it to be made more specific. Such a bill of particulars shall be nexed, and shall be answered or replied to as such, deemed a part of the pleadings to which it is anand as such shall define and limit the proof, subject, however, to amendment as hereafter provided. The items of a bill of particulars shall be consecutively numbered, and the party adverse shall answer specifically every item; but he may make one and the items to which such allegation or denial is applicasame allegation or denial concerning any number of 292. A replication which states the title of the cause, before what court pending, and the time, and then contains the following allegable. tions, to wit: "Now comes the plaintiff A B and denies owing the defendant C D (here state the amount claimed by the other party), or any sum as alleged by the defendant," and which is signed by the plaintiff or his attorneys, is a sufVol. 2.-113 specifying the number of the items thus answered together, when less than the whole. SEC. 2920. If the action, set-off, counter-claim or other writing, as evidence of indebtedness, the origcross-demand is founded on a note, bill, bond, or to the pleading, if in the power of the party to proinal or a copy thereof must be set out in or annexed cure it. If not so done, the reason thereof must be stated in the pleading. If there be no such copy so set out or annexed, and no sufficient reason stated Demurrer-In General. 296. A demurrer, so far as it is an admis- is punishable by our law, may be sufficiently sion at all, is so of that only which is well specific, but under such a general specification pleaded, and one of its offices is to inquire whether the matter is well pleaded, or can be pleaded. Harkins v. Edwards & Turner, 1 Iowa, 426. 297. Requisites of. A demurrer should specify the precise grounds of objection to the pleading, and a demurrer not thus specific should be disregarded by the court. Jones v. Brunskill, 18 Iowa, 129; Cole v. Porter, 4 G. Gr. 510; Babbitt v. Walters, 3 Ibid. 564; Benham v. The State, 1 Iowa, 542; Danforth, Davis & Co. v. Carter & May, Ibid. 546; Crittenden v. Steele, 3 G. Gr. 538. 298. A demurrer should employ language which will point to the fact upon which it is claimed that the court has no jurisdiction, or that no sufficient cause of action has been stated, but it is not necessary to state the reasons which lead the mind of the pleader to this conclusion. The Davenport Gas-light & Coke Co. v. The City of Davenport, 15 Iowa, 6. 299. Indefinite demurrer. Where a demurrer to a petition at law sets out two causes: "that the matters set forth in said petition do not constitute any cause of action against the defendant; and that said petition does not show such a state of facts as will justify the court in granting any relief by judgment or otherwise, to said plaintiff," it was held, that it should have been disregarded by the court. McKellar et al. v. Stout, 13 Iowa, 487. 300. to indictment. A demurrer to an indictment, on the ground that it is insufficient in law to compel the defendant to further answer thereto, is entirely too general. Benham v. The State of Iowa, 1 Iowa, 542; The State v. Groome, 10 Ibid. 309. 301. A demurrer to an indictment, on the ground that there is no criminal offense known to the law charged in said indictment, if designed to raise the question whether the offense charged for such omission, it will be sufficient ground for a demurrer to such pleading. SEC. 2961. When a pleading shows affirmatively, that its cause of claim is barred by the statute of limitations, it may be assailed by demurrer. SEC. 2963. When any pleading shows affirmatively, that its cause of claim should be evidenced by writing, according to the law of evidence, and that the same is not so evidenced, it may be assailed by de murrer. SEC. 2877. The demurrer must distinctly specify and consecutively number as the grounds of objection, some matter of error, intended to be argued as a defect in the pleading: unless it do so it shall be disregarded; and it shall not be enough to state the demurrer cannot be permitted to point out particular defects in an indictment which charges an offense punishable under the law, although it may be technically defective. Ibid. 302. A question which strikes at plaintiff's cause of action should be presented by demurrer, and not by motion in arrest of judg. ment. Veach v. Thompson et al.. 15 Iowa, 380. 303. Standing upon demurrer. It is necessary for the plaintiff, if he would make his exception to the overruling of a demurrer to the answer available, to announce to the court, and have an entry upon the record, or to take a bill of exceptions, showing that he elected to stand upon the demurrer. Wilcox v. McCune, 21 Iowa, 294: Plummer v. Roads, 4 Ibid. 587. 304. Judgment on demurrer. When the answer set up a complete defense to the action, and the plaintiff demurred thereto, and upon the same being overruled, abided thereby, and refused to plead over, it was held, that the court did not err in rendering judgment for the defendant without a trial upon the issues of fact. Simeral v. The Dubuque Mutual Fire Ins. Co. 18 Iowa, 319. 305. If, upon the overruling of a demurrer to the petition, the defendant fails to plead over, a decree may be rendered against him as upon default. Brown v. Malory, 26 Iowa, 469; Bridge, Beach & Co. v. Livingston et al., 11 Ibid. 59. 306. But final judgment should not be rendered for the plaintiff without evidence sustaining his cause of action. Musser & Co. v. Hobart et al., 14 Iowa, 248. 307. Trial after ruling on demurrer. The overruling of a demurrer to an answer does not conclude the plaintiff from contradicting the allegations of the answer by evidence, upon & trial of the issues of fact. Standish v. Dow et al., 21 Iowa, 363. the objection in the terms of the preceding section, except that a demurrer to an equitable petition for the fifth reason of section 2876 may be stated in the terms thereof. SEC. 2878. When any of the matters enuL.erated in section 2876 do not appear on the face of the petition, the objection may be taken by an answer. If no such objection is taken either by demurrer or answer, the defendant shall be deemed to have waived the same except only the objection that the petition does not state facts sufficient to constitute a cause of action, or states a fact which avoids the cause of action. SEC. 2879. The defendant may demur to one or more causes of the several causes of actions alleged in the petition and answer, as to the residue. 308. Second demurrer. An appearance and the filing of a demurrer to plaintiff's petition by an attorney who was not authorized to represent the defendant, does not deprive such defendant of the right to file a second demurrer upon the withdrawal of the first, though the Wintercause had been continued one term. stein v. Walker, 10 Iowa, 198. 309. Chancery practice. In the chancery practice, to say by demurrer that there is" no equity in the bill," reaches all matters of substance, and those only; if the objection is to the form of the bill, the particular defects or objection must be stated. Hoskins v. Hattenback & Charles, 14 Iowa, 314. 317. A demurrer puts in issue the entire equity of the bill, and if sustained as to some, it should be as to all the defendants. Ibid. 318. To single allegations. Single allegations of a pleading in an equitable proceeding though deficient in themselves, are not subject to demurrer, if, when taken with the other allegations, with which they are intended to be construed, they constitute a sufficient cause of action or defense. Benedict v. Hunt, 32 Iowa, 27. 319. Separate defenses. When an answer presents several distinct and separate defenses to the action, any one of them may be assailed Skinner v. The Chicago, Rock by demurrer. Island and Pacific R. R. Co., 12 Iowa, 191. 320. When a default is set aside on affidavit 310. Filing an exhibit with a demurrer raises no grounds there for not existing in the of merits, and the defendant thereupon files a Ruddick v. Marshall, demurrer as well as an answer, it is not error, pleading demurred to. Perunder the Code, to reject the demurrer. 23 Iowa, 243. 311. Amendment. When a defect in a plead-kins v. Davis, 3 G. Gr. 235. ing is amended by an additional pleading filed before the determination of the demurrer thereto, the demurrer should not be sustained. Bell v. Byerson & Barlow, 11 Iowa, 233. 312. General demurrer. A general demurrer to a pleading containing two or more counts, one of which is sufficient, should be overruled. Edmonds v. Cochran, 12 Iowa, 488; Jarvis v. Worwick, 10 Ibid. 29; Dorr v. Lilley et ux., 11 Ibid. 4; Brown v. Tomlinson, 2 G. Gr. 525; Hendershott v. Ping, 24 Iowa, 134; Singer v. Cavers, 26 Ibid. 178; Sample v. Griffith, 5 Ibid. 376; Coon v. Jones, 10 Ibid. 131; Chambers v. Lathrop, Mor. 102. 813. When a bill shows equity on its face, and is only defective in part, a general demurrer to the entire bill should be overruled. Harring ton v. Cubbage, 3 G. Gr. 307. 314. It is error to sustain a demurrer to the whole of an answer, one count of which is good as putting in issue material averments of the petition. McPhail & Co. v Hyatt, 29 Iowa, 137; Zapple v. Rush, 23 Ibid. 99; Bonney v. Bonney, 29 Ibid. 448. 315. A general demurrer can prevail only against substantial defects, and under such a demurrer no advantage can be taken of merely formal defects. Coffin v. Knott, 2 G. Gr. 582. 316. Upon a general and special demurrer it is not necessary to make good all the causes of demurrer assigned. If sustained for one out of several causes affecting the whole bill, it is sufficient. De Louis et al. v. Meek et al., 2 G. Gr. 55. 321. Extent of demurrer. The common-law rule that a demurrer reaches back to the first defective pleading is not applicable to pleadings under the Code of 1851. Gano v. Gilruth, 4 G. Gr. 453. 322. prior to Code of 1851. When a statute of limitations is pleaded, which cannot operate as a bar to the action, and a replication is filed that one of the joint debtors had promised payment within six years, to which replication defendant demurred, it was held that the demurrer related back to the first mistake in pleading, and that plaintiff was entitled to judgWile & Fear v. Mather ment on the demurrer. 323. Demurrable defects cured by verdict. A defect in a petition, which should be assailed by demurrer, is cured by verdict. Crossen v. White, 19 Iowa, 109. b. Causes of. 324. A demurrer based upon a ground not included in the enumeration of causes contained in section 2876 of the Revision, should be overruled. Orman v. Orman, 26 Iowa, 361. 325. That the petition does not state facts sufficient to constitute a cause of action is too indefinite a ground of demurrer in an action at Crouch v. Crouch, 9 Iowa, 269; Childs v. law. Limback, 30 Ibid. 398; Singer v. Cavers, 26 Ibid. 178. 326. A demurrer to a petition for mandamus, based on the ground that the petition does not Demurrer - Causes of. state facts sufficient to constitute a cause of action, is too indefinite. McGregor and Siour City R. R. Co. v. Birdsall, 30 Iowa, 255. 327. A demurrer, stating “that the answer is not sufficient in law," is too general and ought to be disregarded by the court. Piper v. New comer & Campbell, 25 Iowa, 221. 328. Where pleading is not sufficiently specific. If the petition is not sufficiently specific in its statement of facts, the remedy is by motion for a more specific statement, and not by demurrer. Coe v. Lindey, 32 Iowa, 437. See, further, PRACTICE, post. 329. The question whether a proceeding should have been at law instead of equity, cannot be raised by demurrer. Byers v. Rodabaugh, 17 Iowa, 53; Conyngham v. Smith, 16 Ibid. 471. 330. It is not a good ground of demurrer that an action which should have been in equity is commenced at law. In such a case the cause 336. Defect of parties. When a defect of parties is apparent upon the record, it may be taken advantage of by demurrer; when not thus apparent, it must be set out in the answer. When set out in the answer, it is a question for the consideration of the jury, and cannot be determined by the court upon motion based upon but a part of the evidence. Enders v. Beck, 18 Iowa, 86. 337. Non-joinder and mis-joinder. Where there is a non-joinder of parties, the defendant may demur, but where there is a mis-joinder of parties defendants, he cannot demur. The remedy is by motion to strike out those improperly joined. Turner v. The First National Bank of Keokuk et al., 26 Iowa, 562; Beckwith v. Dargets, 18 Ibid. 303; Roop v. Seaton, 4 G. Gr. 252; see Hine v. Houston, 2 Ibid. 161. 338. Where matter which should properly be stated in different counts is all stated in should be transferred to the chancery docket. one count, it may, on motion, be separated (Rev., Wright v. McCormick, 22 Iowa, 545. 331. The objection that a party has an adequate remedy at law by motion to set aside the default instead of by a proceeding in equity to vacate the judgment, cannot be raised by demurrer. Brown v. Mallory, 26 Iowa, 469; Conyngham v. Smith, 16 Ibid. 471; Byers v. Rodabaugh, 17 Ibid. 23. § 2903; Code of 1873, § 2706), but cannot be reached by demurrer. Swords v. Russ, 13 Iowa, 603. 339. Redundant and irrelevant matter. Where matter is redundant or irrelevant, it may be struck out on motion (Rev., § 2946, Code of 1873, § 2719, but cannot be corrected by demurrer. Davenport Gaslight & Coke Company v. The City of Davenport, 15 Iowa, 6; Childs v. Griswold, Ibid. 438; The School Dist. Township of Sioux City v. Pratt, 17 Ibid. 16; Kinyon v. 332. Under the Revision of 1860 a demurrer is not applicable to the question whether a proceeding should have been by law or equity, or by bill in equity, rather than by motion. Trair | Palmer, 18 Ibid. 377. See, further, sub-title v. Lytle, 20 Iowa, 301. 333. Allegations of due diligence. When, in an action against the indorser of a promissory note, the plaintiff sets forth in his petition the diligence used against the maker, its sufficiency may be treated as a question of law and determined on demurrer. Hartford Bank v. Green, Thomas & Co., 11 Iowa, 476. 334. In equity: laches. Where, upon the case stated in the bill, the complainant, by reason of lapse of time, or laches on his part, is not entitled to relief, the defendant may demur. Pierson v. David et al., 1 Iowa, 23. 335. Alternative allegations. That an allegation respecting the cause of action is stated in the alternative is not a cause of demurrer. The remedy is by motion to strike out those improperly joined. Turner v. The First tional Bank of Keokuk et al., 26 Iowa, 562. herein, REDUNDANT MATTER, post. 340. Insufficiency in law. Allegations in an answer which are insufficient in law as a defense should be objected to by demurrer and not by motion. Childs v. Griswold, 15 Iowa, 438. 341. A demurrer is proper when a pleading does not on its face show a sufficient cause of action or defense, and can be interposed only when the legal sufficiency of the entire count in the pleading is controverted. Hayden v. Anderson et al., 17 Iowa, 158. 342. But where statements are not sufficiently full or specific, the defect cannot be reached by demurrer, but should be by motion for a more specific statement. Byington v. Woods et al., 13 Iowa, 17. 343. A specification in a demurrer, that "the Na-petition is otherwise insufficient in law to sustain the action," does not comply with section Demurrer 1754 of the Code of 1851, and is too general. Thayer v. Hurlburt et al., 5 Iowa, 521. 344. A demurrer will not lie to a pleading simply because the prayer thereof may ask relief, to which its averments would not entitle the pleader. (Beale v. Hayes, 5 Sandf. 640; Andrews v. Shaffer, 12 How. Pr. 441; Hecker v. Degroot, 15 Ibid. 314; Witherhead v. Allen, 28 Barb. 661.) Byers v. Rodabaugh, 17 Iowa, 53. 345. Where a whole pleading is impertinent or immaterial, it may be struck from the files. Mann v. Howe et al., 9 Iowa, 546; Keeny v. Lyon, 10 Ibid. 546. 346. Want of verity in the allegations of an answer cannot be made available by demurrer. McGregor v. McGregor, 21 Iowa, 441. 347. That a pleading is argumentative is not good ground of demurrer under sections 2876, 2918, 2961 and 2963 of the Revision of 1860.* Davis v. Bonar & Kearns, 15 Iowa, 171. 348. Failure of consideration. An objection to a petition in an action upon an instrument in writing, on the ground that it is not alleged or shown either in the petition or writing that it is sustained by a sufficient consideration, cannot be taken by demurrer. It must be averred and shown by way of defense. Goodpaster v. Porter & Courtney, 11 Iowa, 161; Linder v. Lake, 6 Ibid. 164. 349. Defects of title. In proceedings to quiet title the defendant may take advantage of defects in the title of complainant, as shown by his petition, by demurrer. Brinton v. Seevers, 12 Iowa, 390. 350. Character and contents of record. That a pleading raises an issue to the character of a record of the court in which such pleading is filed, cannot be assigned as good ground for demurrer. Issues as to the existence or contents of records may be raised by pleadings, and must be determined upon evidence. The State of lowa ex rel. Clark, Dodge & Co. v. The City of Davenport, 12 Iowa, 335. -Causes of. ters, 6 Ibid. 106; The City of Pella v. Scholte, 21 Ibid. 463; Shorick v. Bruce, Ibid. 305. Under the old practice the rule was otherwise. Sleeth v. Murphy, Mor. 321. 352. A demurrer will not lie to a plea of nonassumpsit within five years, if the legislature has extended the limitation to six years, which is unexpired at the time of the plea pleaded. Sleeth v. Murphy, Mor. 321. 353. Sufficiency of transcript. An objection to the certificate of a transcript, upon which an action is founded, cannot be presented by demurMcGlasson v. Wright, 10 Iowa, 591. rer. 354. Attachment proceedings. The allegations in a petition which are intended as a basis for a writ of attachment do not touch the cause or right of action, and, if insufficient, cannot be reached by demurrer. Hunt v. Collins, 4 Iowa, 56. 355. Action on judgment. In an action by T. and W. on a judgment rendered in favor of L., it was alleged that said "judgment has now become the property of your petitioners," but no written assignment was alleged or shown in Held, that the allegation was obany manner. jectionable as pleading a conclusion of law, but that it should be attacked by motion and not by demurrer. Thompson et al. v. Cook, 21 Iowa, 472. A bill for 356. Foreclosure of tax title. the foreclosure of a tax title averred generally that the plaintiff had paid all the taxes levied subsequent to the sale, for two years, and that said taxes amounted to a certain sum which was named. It was held, that an objection to the bill could be properly presented by a motion for a more specific statement, but not by demurrer. Byington v. Woods et al., 13 Iowa, 17. 66 357. Action on bond. In an action on county bonds, the petition set out the bonds, which purported on their face to be issued 'By authority of the statutes of the State of Iowa." Held, that a demurrer to the petition would raise the question whether the statutes did confer such a power. (WRIGHT, J., dis351. Statute of limitations. When the peti-senting). Hull & Argalls v. The County of Martion in an action on a promissory note shows shall, 12 Iowa, 142, that its cause of action is barred by the statute of limitations, it may be assailed by demurrer. Miller v. Dawson & Conger, 26 Iowa, 186; Lawrence v. Sinnamon, 24 Ibid. 80; Phares v. Wal *See note at commencement of this sub-title, wherein sections are set out. 358. A plea averring complete performance of all the conditions of the bond sued upon is not demurrable. Musgrave et al. v. The Board of Commissioners of Muscatine Co., 1 G. Gr. 446. 359. Former adjudication. To an answer alleging cause of action set forth in the peti |