Simmons v. Rust , 39 Iowa 241 ( 1874 )

Cole, J.

. „TT,AT1T„„. amendment. I. After the pleadings were, all filed, and the issues were made, the defendants asked leave to amend their first answer, wherein they “admit they executed t]ie notes and mortgage to said Henry Rust, Sr., in his life time,” etc., by striking out the word “notes,” wherever it appears in said answer. This was refused, and such refusal is assigned as error.

There was no error under the circumstances. The answer was sworn to, and it also appears from the record that the court informed the defendants’ counsel that if they desired to deny the execution of the notes, upon information or belief, or by a direct denial thereof so as to form an issue, they might. do so, with or without swearing to such amendment, or in any way amend so as to make an issue upon the execution of the notes. This offer was declined. The action of the court was very clearly right. Amendments by erasure or interlineation are prohibited by Code, § 2692; and even if it was error, there was no prejudice, because by striking out the admission of the execution of the notes, it would still leave that allegation undenied, and from that state of pleading the same consequences follow as from an express admission. Code, § 2712.

2 evidence-res gesta. II. While all the questions made upon the different counts of the plaintiff’s petition were being tried before the jury, the plaintiff-was permitted, against the defendant’s objection, to read the whole of certain depositions, and to the reading of so much as related to the real estate and personal property of the deceased at the time he went to. live with the defendants in 1856, the defendants specially objected, because irrelevant and incompetent. To understand this question it is proper to state that the defendants are husband and wife, Henry Rust Sr., was the father of the defendant,' Henry Rust, Jr., and the plaintiff is his brother-in-law, and the witnesses are his sisters and brothers-in-law. In about 1856 the plaintiffs intestate, who was a farmer, and growing old and weak, appears to have given up his business into thfe hands of his two sons, Henry and Frank, the youngest of his children, and to. have lived with them as a member of their family. Catharine was at that time the wife of Frank Rust, who afterwards died, and subsequently she married the defendant, Henry Rust, Jr. The plaintiff claimed in his amended petitions for the services of the deceased, and also for the personal property he had at the time he gave up business for himself and went to live with defendants. The objected testimony related to the pérsonal property, and also to the real property of the deceased at that time. It was all properly admitted as showing fully all the facts surrounding the parties at the time.

III. The only other point argued by the appellant’s counsel is that the verdict is not supported by the evidence. It is not necessary or proper for us to review and discuss the evidence at length. We -have severally carefully read and examined it all, and are satisfied that the jury were entirely justified in their finding.

Affirmed.