Buehler v. Reed ( 1860 )

-Baldwin, J.

The plaintiff-sued -for a balance due upon a settlement of account. -The defendant demurred for the reason that there was no copy of the account sued on annexed to the plaintiff’s petition. The demurrer was overruled, and the defendant having failed to answer over, judgment was rendered in favor of plaintiff for the amount, claimed, as upon demurrer,-and without the introduction of any evidence. This action of the court is assigned as error.

When a pleading is founded upon a written instrument or account, a copy thereof must be annexed to such pleading or it will be a sufficient ground of demurrer. Code, section 1750. We do not understand the petitioner in this case as claiming money due upon account, but for a balance acknowledged. to be due upon a settlement of accounts, between said parties. It was not necessary, therefore, for the plaintiff to have annexed to his petition a copy of the account which was the basis of such settlement. Gfhe demurrer was properly overruled.

But the court rendered judgment for the amount of plaintiff’s claim without evidence, holding thereby that the defendant by the demurrer admitted the allegations in the petition to be true. In this there was error. The demurrer related to the sufficiency alone of the copy of the account annexed, and did not admit the correctness of the averments in plaintiff’s petition.¹ The defendant having failed to answer, the amount the plaintiff was entitled to recover should have been established by evidence, the same as though a judgment had been rendered by default.

Judgment reversed.

1 . See Harkins v. Edwards & Turner, 1 Iowa 426; Games v. Robb, 8 Ib. 193.