Cameron v. Armstrong

A demurrer to the petition is waived by an answer; and the defendant, after answering, cannot assign for error in the appellate court, the judgment of the court overruling the demurrer. Where a defendant, after his demurrer to the petition is overruled, files an answer, with pleas of tender and set-off, and subsequently withdraws Ills plea of set-off, leaving his answer and plea of tender on file, he is not in a position to assign error on the overruling of the demurrer. Where the action is brought upon a mere money demand, and the amount for which judgment should be rendered, a mere matter of computation, the damages may be properly assessed by the clerk. Where a petition claims a sum certain from the defendant, with interest, it is not error to render judgment for a greater amount than the sum claimed.

Appeal from the DesMoines District Court. Tile plaintiff claims of the defendant the sum of seven hundred and seven dollars and fifty cents, which she alleges to be due to her, and states her cause of action as follows : “ that defendant leased of plaintiff the ‘ National Hotel ’ building in Burlington ; and that the above sum, with interest thereon, is due and owing petitioner, as a balance due on the several leases executed by petitioner in favor of defendant for the said building, a particular account of which sums and interest is attached to petition. She, therefore, asks judgment for that amount, with interest and costs.” A demurrer to the petition was overruled at the October term, 1857. Defendant then filed his answer, denying the allegations of the petition, together with his plea of tender and set-off. Issue being joined, the defendant moved the court for a continuance of the cause until the next term. The motion being overruled, and the cause coining on for trial, the record entry states: “ Whereupon defendant withdraws his set-off, heretofore filed in this case, and stands upon his demurrer, heretofore overruled; and thereupon the same being submitted to the court, and the court being fúlty advised in the premises, finds for the plaintiff',” and the damages being assessed by the clerk at the sum of $723,84, judgment for that amount was rendered in favor of plaintiff.