Savings Bank v. Horn , 41 Iowa 55 ( 1875 )

Day, J. —

The error assigned and urged is that it does not appear from any allegation of the petition that the plaintiff is a corporation, or otherwise has legal capacity or power to sue.

i pleading-corporation. Conceding that the petition is defective, yet the defendants might have been relieved from the consequences of the defect ky making the proper motion in the court below, anc[ ]ience they ought not to be heard, for the first time, here. The defendants were properly served with notice of the action, and. were either actually present in court or might have been. They were present in legal contemplation. The default might, upon their motion, have been set aside under Section 2871 of the Code. This done, the plaintiff might have amended the petition by inserting the necessary averment, and the defendants, if unwilling to admit it, might have denied it. Thus, speedy and complete justice could have been done both parties. Section 3168 of the Code provides that “a judgment or order shall not be reversed for an error which can be corrected on motion in an inferior court, until such motion has been made there, and overruled.” This is a most salutary provision, and we think it is applicable to the present case. If, in fact, the plaintiff was not incorporated, or had no authority to sue, we can conceive of no reason why the defendants did not properly raise that question in the court below. The presunrption is very strong that they did not do so because they knew the mistake would at once be corrected iqion their suggestion that it existed. At all events as they might, without expense or delay, have had full relief in the court below, and did not ask it, they ought not to be permitted, through both expense and delay, to have it here. See Bernyhill v. Jacobs, 19 Iowa, 346, and eases cited.

Aebibmed.