Hynes v. S. A. & D. R'y Co. , 38 Iowa 258 ( 1874 )

Day, J.

— The motion to dismiss was properly overruled. The matters which it contains should have been set up in a supplemental answer in abatement. Eevision, §§ 2942 and 2968; 1 Chitty on Pleading, 657-8 marginal.

The plaintiff has a right to disprove the agreement to submit, or to show that it was procured by fraud. In either case the defense alleged would not be sustained.

The matter alleged is purely defensive, as much so as payment, release, or a former adjudication of the same matter. There is no principle which authorizes its determination upon a mere motion. Causes are tried upon issues joined.

Eor this reason the action of the court was right.

Affirmed.