D. M. Osborne & Co. v. Metcalf

Waterman, J. 2 3 No question is made but what the proof warranted the action of the court in directing a verdict against defendant bank. It is claimed, however, in justification of the order as to costs, that the petition did not warrant the court in taking the case from the jury, in plaintiff’s favor, until the amendment was filed, and that substantially all the costs so taxed had been incurred before such amendment was made. The thought seejns to be that the substituted petition did not state a case against the bank. We need not follow counsel for defendants in the line of argument pursued to sustain the court’s ruling. We are convinced that the substituted petition stated the same case against the bank as was made by the amendment. The averments that the sheriff sold the goods “pursuant to directions” from the bark, and that the two defendants wrongfully converted the property, are quite sufficient to make a case against the bank. Just what is alleged here seems to have been what was proven, and no complaint is made that the evidence did not show liability on the part of the bank. Indeed, we might well hold that by failure to attack the original petition, by which we mean the substituted pleading, and going to trial upon it, defendant bank has waived its right to claim that no cause of action against it is therein set but. Benjamin v. Vrieth, 80 Iowa, 149. As the. motion to direct a verdict for plaintiff might well have been-sustained before the last amendment, the,filing-of such pléading could not affect the costs, which should have been taxed against defendant bank. — Reversed.