The Davenport Gas Light and Coke Company v. The City of Davenport. should nevertheless be promptly exercised by courts, by striking all such redundant or irrelevant matter from the pleadings whenever the objection is made. And if, instead of being in part irrelevant or redundant, it proposes to answer a whole cause of action, and consists of propositions which are statements of evidence tending to show that there is no defence as to part of the action, it is demurrable. Defendant, by the first clause of the answer, denies that gas was furnished by the company in the manner and on the terms proved by the contract for the term charged; that there were the number of public lamp posts, stated in the petition; that plaintiff complied with the terms of the contract; that the contract had never been broken by the city; and also the various other matters set out in the several counts. Under these denials all the matter contained in the second division could be applied in evidence. If the city did not have more than seventy-five public lamps, by adoption or otherwise, then she would not be liable for lighting more than that number, and all evidence upon this subject could be introduced under the denials of the first clause without in a pleading attempting to disprove the allegation of the petition by an argument or the introduction of evidence which tends to disprove it. Not without some difficulty, therefore, in determining the whole purport of the plea, and more doubt perhaps whether from its peculiar phraseology the defect can be reached by demurrer, we conclude that the demurrer should have been sustained. We believe this view to be more in accordance with our system of pleadings; that it tends to prevent confusion and the introduction of irrelevant matter; that it assists in bringing litigants to a single issue, or the very one in controversy; while the contrary rule gives license to a loose and random practice, which neither the common law, nor the modern system countenance, and can only tend to protract litigation and unnecessarily cumber records. Lawton v. Buckingham: By agreement of parties we are to consider (so far as the matter can be reviewed here), the objection of the defendant, that the court below erred in sustaining plaintiff's motion to strike out certain interrogatories attached to the answer. The views above expressed dispose of the question. We remark, however, in addition, that it may well be doubted whether an appeal lies to this court from such an order. We incline to the opinion that the case does not fall within any of the subdivisions of § 2632. But without passing upon the question more definitely we hold that there was no error in the order made ruling out said interrogatories. Reversed. 15 22 106 516 LAWTON et ux. v. BUCKINGHAM, Executor. 1. DEED AS EVIDENCE. The amount named in the deed is only prima facie evidence of the amount actually paid. 2. SAME: PLEADING. In an action for breach of covenants, a general allegation, that the consideration was greater than the amount named in the deed, is sufficient to render evidence of mistake in drawing the deed, admissible. 3. ADMISSIONS BY PLEADINGS. Allegation in the petition undenied by the answer, are taken as true. 4. JUDGMENT AGAINST EXECUTOR. A personal judgment against a defendant who is sued as an executor is erroneous. Appeal from Lee District Court. SATURDAY, JUNE 6. WRIGHT, J.-1. The consideration named in a deed is only prima facie evidence of the amount actually paid. And in an action to recover for a breach of the covenants of seisin and right to convey, it is competent to show that the true consideration was greater than that named. Timmons v. Johnson. If the amount was inserted by mistake, an averment to that effect is not necessary to let in the proposed testimony-it being averred that it was greater than that shown by the deed. 2. The deed was made to Caroline, wife of Nathan Lawton. They joined as plaintiffs in the action. It is objected that there is no evidence showing the marital relation. The petition shows that such relation is averred and it is not denied. 3. The action is against defendant in his capacity as executor. The judgment is against him in person. This was evidently not intended. But for this error, the cause will be reversed and remanded, with instructions to enter the judgment upon the verdict in proper form-the appellees paying the costs of this appeal. 1. JUDGMENT AGAINST GARNISHEE. A judgment against a garnishee should not exceed that against the judgment defendant. 2. LIABILITY ON ASSIGNABLE MORTGAGE. A garnishee cannot be made liable on a mortgage which is not negotiable, but is assignable, unless the mortgage is produced, or the garnishee is completely exonerated or indemnified from liability thereon after he may have satisfied the judg ment. (Rev. 1860, § 3211.) Appeal from Washington District Court. MONDAY, JUNE 8. On the 16th November, 1861, plaintiff recovered judgment against one Craig for $187, and costs, $11.60. Johnson was summoned as the debtor of Craig, and answered that on the 25th of October, 1854, he bought a farm of one Timmons v. Johnson. Tipton, on which there was a mortgage to Craig to secure the purchase money, $200; that he ascertained the exist ence of the mortgage after his purchase, and requested Tipton to discharge it; that Tipton professed and expressed a willingness to do so if he could find Craig; that for his (Johnson's) protection Tipton thereupon paid him the money, $267.63, and he agreed to pay the mortgage when it should be produced, and to hold Tipton harmless touching the same. This money was received June 16th, 1856. The mortgage purports on its face (as shown by a duly certified copy from the record) to have been given September 7th, 1852, due January 1, 1857. The garnishee also answered that, "where or in whose possession the note now is he did not know." The plaintiff took issue upon the answer, so far as to deny that Tipton executed a note, averring that the mortgage was the only evidence of indebtedness. On the hearing, Tipton, against defendant's objection, testified that he never executed a note, but the mortgage alone; and upon this evidence, in connection with the answer of the garnishee, judgment was rendered against him for $318. A motion for a new trial was made and overruled. Defendant excepted and appealed. J. R. Lewis for the appellant. Patterson & Sherman for the appellee. WRIGHT, J.-That the judgment against the garnishee is at least excessive we entertain no doubt. Plaintiff had judgment against the principal, dated November 16th, 1861, for damages and costs, $198.60, and recovered judg ment against the garnishee on the 20th of the same month for $318, less costs of the garnishee proceeding, $6.70. As the indebtedness from Johnson to Craig exceeded that from Craig to plaintiff, the judgment against the garnishee McKay v. Thorington. should have been limited to the amount of the original judgment. If Johnson's indebtedness had been less, then it would have been proper to have made him liable for the full amount of that indebtedness. But plaintiff had no right to recover against the garnishee a greater amount than was coming to him from his original debtor, and the costs of the first proceeding or judgment. (Revision, § 3209.) Whether the court below erred in receiving the testimony of Tipton, we need not discuss, as we think that upon another ground the judgment must be reversed. Conceding that there was no note, the mortgage itself, treated by appellee as the sole evidence of the debt, was assignable, and it was erroneous to enter any judgment against the garnishee until such mortgage was delivered; or he was completely exonerated or indemnified from all liability thereon. This is the requirement of the statute (Revision, § 3211), which was intended to guard and protect the rights of garnishees in this class of cases. The mortgage, it is true, was not negotiable, but was assignable, and the statute reaches both classes of paper. (Pope & Slocum v. Jacobus et al., 10 Iowa, 262.) Reversed. MCKAY V. THORINGTON et al. 1. DELIVERY BY SHERIFF TO HIS SUCCESSOR. Where a sheriff actually receives property from his predecessor, or receives the writ under which it is held, and dispenses with an actual delivery, his liability for the safe keeping of the same is established without the execution of a receipt; but mere silence or inaction, unless it be under circumstances which makes it a waiver, is not sufficient to charge the incoming sheriff. 2. NEW TRIAL: INSUFFICIENCY OF EVIDENCE. When the Supreme Court is satisfied that a verdict was against the weight of evidence, it may set the VOL. XV.-4 |