Cruver v. Chicago, Milwaukee & St. Paul R'y Co.

Day, Ch. J. The defendant asked the court to instruct the jury as follows: “TJnder the allegations of count 1st of plaintiff’s petition, the plaintiff could not recover double the value of the heifer referred to in the first count of plaintiff’s petition, even though you should find that she was running at large at the time of the injury.” The court refused to give this instruction. The defendant now insists that there can be no recovery of double damages upon the first count, because it does not allege the service of the affidavit and notice in writing, which is essential to a recovery of double [462] damages. Section 2646 of tbe Code, subdivision 5, provides “When the petition contains more than one cause of action, each must be stated wholly in a count or division by itself, and must be sufficient in itself; but one prayer for judgment may include a sum based on all counts looting to a money remedy.” It must be conceded that the first count of the petition does not contain the averments necessary for the recovery of double damages. ' See The National Bank of Michigan v. Green, 33 Iowa, 140. And yet other parts of the petition do contain the averments necessary to a recovery of double damages for the whole injury sustained, and it is clearly apparent from the whole petition that the plaintiff was seeking double damages for all the injury sustained. The case is no1 one where the petition does not state facts sufficient to constitute a cause of action, but where the facts are not stated in the formal manner which the Code and the rules of pleading require. The defect was apparent upon the face of the pleading. An objection apparent upon the face of of a jfiead-ing, which might have been raised by demurrer, will be waived by going to trial on the merits, and cannot be raised for the first time in an instruction. Young v. Broadbent, 23 Iowa, 539. Even an objection that the facts stated in the petition do not entitle the plaintiff to any relief whatever must be taken advantage of by motion in arrest of judgment, before judgment is entered. Code, § 2650. Although the motion for a new tidal presents thirty-three grounds, no one of them refers to any defect in the petition. We are clearly of opinion that the objection now insisted upon has been waived. II. The defendant complains of certain instructions given upon the question of tender. As the court granted a new trial upon all the counts in which the tender was pleaded, the present appeal does not involve the correctness of these instructions. III. The appellant submitted with the case a motion to strike from the files appellee’s amended abstract. The [463] amended abstract was not filed until long after tbe time prescribed in tbe rules of this court. We will not for that reason strike it from tbe files, but no costs will be taxed to tbe appellant therefor. Affirmed.