[The word "duly" in the first line, as it stands in the original, is omitted in the printed code.]

An unverified petition, even in a case where verification is made necessary is not a nullity, and advantage of the defect can only be taken by motion to strike: Rush v. Rush, 46648.

Filing a demurrer to a petition waives any error in the ruling of the court on motion to strike out for want of verification: Stineman v. Beath, 36–73.

SEC. 2678. The verification of the pleading does not apply to when applica the amount claimed, except in actions founded on contract, express or implied, for the payment of money only.

SEC. 2679. The verification shall not make other or greater proof necessary on the side of the adverse party.

The provisions as to verification ap- as to the amount of testimony necesply equally to pleadings in ordinary sary to overcome a sworn answer in and equitable proceedings: Shepard a chancery proceeding, is abrogated: r. Ford, 10-502, (discussing and ex- Wilson v. Holcomb, 13-110; Mitchell plaining previous cases,) and the ruler. Moore, 24-394.

ble to amount
claimed.
R. 2914.

Proof.

R. 2915.

R. 22581.

SEC. 2680. Courts may permit the amendments authorized by Amendments this chapter to be made without being verified, unless a new and not verified. distinct cause of action or counter claim is thereby introduced. Section applied: Tegler v. Ship-1 man, 33-194, 197.

SLANDER-LIBEL.

Statements of

R. & 2923.

SEC. 2681. In an action for slander or libel, it shall not be necessary to state any extrinsic facts for the purpose of showing petition. the application to the plaintiff of any defamatory matter out of which the cause of action arose, or that the matter was used in a defamatory sense; but it shall be sufficient to state the defamatory sense in which such matter was used, and that the same was spoken or published concerning the plaintiff.

planatory circumstances known to
both parties will be considered as
part of the words: De Moss v. Hay-
cock. 15–149.

When words have a libelous mean- | Wilson v. Beighler, 4-427; and exing on their face, it is sufficient to set them out without alleging such meaning, but if they are not actionable on their face, plaintiff must allege the defamatory sense in which they were Words imputing to a woman want used, and that they were so used in of chastity are actionable per se; Cox relation to him: Kinyon v. Palmer, v. Bunker, Mor. 269; Daily v. Rey18-377; but the extrinsic facts show-nolds, 4 Gr. 354; Abrams v. Forshee, ing that they were so used need not 3-274, 281; so are words charging her be alleged but are matter of proof: with being a whore: Smith v. SiIbi; Clarke v. Jones, 49-474; Swear-lence, 4-321; or charging an unmaringen v. Stanley, 23-115. ried woman with having had a child:

Words are to be taken in their Beardsley v. Bridgman, 17-290; but plain and natural import and in the not words charging a woman with sense in which they would be under-procuring an abortion upon herself: stood by those to whom they were ad- Hatfield v. Gan", 15–177. dressed: Truman v. Taylor, 4-424;

torts.

SEC. 2682. In any action brought to recover damages for an of answer in injury to person, character, or property, the defendant may set and for other forth in a distinct division of his answer, any facts of which evi- R. 229. dence is legally admissable to mitigate or otherwise reduce the damages, whether a complete defense or justification be pleaded or not, and he may give in evidence the mitigating circumstances

whether he prove the defense or justification or not, and no mitigating circumstances shall be proved unless plead, except such as are shown by, or grow out of, the testimony introduced by the adverse party; and in actions for slander or libel, an unproved allegation of the truth of the matter charged, shall not be deemed proof of malice, unless the jury on the whole case find that such defense was made with malicious intent.

[The word "prove" in the seventh line, as in the original, is "provoke " in the printed code.]

35-13.

All mitigating circumstances, cer- | the words spoken: Desmond v. Brown, tainly all contemporaneous with the act which might at common law have been given in evidence under the general issue, may still be given under an answer in denial. But all which tend to show the truth of the charge must be pleaded. It is the safest rule, to state every fact relied on in mitigation: Beardsley v. Bridgman, 17290.

Facts relied upon as mitigating circumstances must be pleaded as such, and not by way of detense or justification: Ronan v. Williams, 41-680. That slanderous words were spoken through heat of passion, under provocation, may be shown in mitigation, but not in complete defense: McClintock v. Crick, 4-453.

It is no justification that defendant believed the words to be true. To justify, he must prove they were, in fact, true. But the belief may be given in evidence in mitigaton: Fountain v. West, 23-9.

Under Rev. § 2929 it was held proper for defendant to allege mitigting circumstances without confessing the speaking of the words, and that it was not necessary to deny malice, or aver belief in the truth of

To justify the charge of a crime, the truth of the charge, i. e., the commission of the crime, must be established by such evidence as would justify the conviction of plainitff if he were on trial therefor under indictment: Bradley v. Kennedy, 2 Gr., 231; Forshee v. Abrams, 2-571; Fountain v. West, 23-9; Mott v. Dawson, 46–533.

Section referred to in Barton v Thompson, 46–30.

The bad character of plaintiff may be shown in mitigation of damages: Armstrong v. Pearson, 8-29; but defendant cannot plead either in defense or mitigation that the plaintiff has been guilty of a specific crime in no way connected with the alleged defamatory words, or the occasion on which they were used: Fisher v. Tice, 20-479. Nor can defendant prove specific offenses or particular acts of dishonesty not connected with the transaction under investigation, nor set up in the pleadings; nor that the plaintiff was in the habit of committing such offenses: Fountain v. West, 23-9.

Section construed generally: Kinyon v. Palmer, 18-377.

By person having an in

terest.

R. & 2930.

INTERVENTION

SEC. 2683. Any person who has an interest in the matter in litigation, in the success of either of the parties to the action, or against both, may become a party to an action between other persons, either by joining the plaintiff in claim ng what is sought by the petition, or by uniting with the defendant in resisting the claim of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant, either before or after issue has been joined in the cause and before the trial commences. A tax payer, as such, has not such | County, 32-520; but where the board an interest in the matter in litigation aid, co.lude and conspire with the as to entitle him to intervene in a opposite party to procure judgments suit against his county to enforce the against the county, a tax payer may payment of a claim-at least in the intervene: Greeley v. County of Lyon, absence of a showing that the board 40-72. of supervisors, acting in bad faith, are failing properly to defend against such claim: Cornell College v. Iowa

In a proceeding to enjoin the collection of a tax in aid of a railway, the railway company may intervene,

although it be not yet entitled to the tax: Brown v. Bryan, 31-556.

A party claiming to be the equitable owner of a promissoryote may intervene, and have his rights estabIshed in a suit brought by the possessor and holder of the legal title against the owner: Taylor v. Adair, 22-279.

The purchaser at a foreclosure sale is subrogated to the rights of the mortgagee, and may intervene in the foreclosure synt which is still pending, as to other defendants: Dyer v. Harris, 22-268.

A party, held, entitled to intervene under the facts of a particular case: Young v. Tucker, 39-596.

Where a verdict has been rendered, or the parties have agreed upon the judgment to be entered, it is too late to intervene: Henry v. Cass Co. Mill, etc. Co., 42-33; First National Bank of Leon v. Gill, 50-425.

A judgment in an action where a third party has intervened as defendant, is conclusive both upon the original defendant and the intervenor: Witter v. Fisher, 27-9.

main action.

SEC. 2684. The court shall determine upon the intervention Cannot delay at the same time that the action is decided, and the intervenor 2001. has no right to delay; and if the claim of the intervenor is not sustained, he shall pay all costs of the intervention.

It is not intended that one not a the record by verdict or by agreeparty shall be allowed to interpose ment: Henry v. Cass Co. Mill, etc. and open up a controversy which has Co., 42-33. been settled between the parties to

R. 2932.

SEC. 2685. The intervention shall be by petition, which must How effected set forth the facts on which the intervention rests, and all the pleadings therein shall be governed by the same principles and rules, as obtain in other pleadings provided for in this chapter. But if such petition is filed during term, the court shall direct the time in which an answer shall be filed thereto.

AMENDMENTS.

C. '51, 1758.

SEC. 2686. No variance between the allegations in a pleading Variance. and the proof is to be deemed material, unless it has actually mis- R. 2972 lead the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be shown by proof to the satisfaction of the court, and such proof must also show in what respect he has been so misled, and thereupon the court may order the pleading to be amended upon such terms as may be just.

No variance is material unless the prejudice: Bower v. Deideker, 38-418. adverse party has been mislead to his |

SEC. 2687. When the variance is not material as provided Same. R. 2973. in the last section, the court may direct the fact to be found C. 51, 1757. according to the evidence, and may order an immediate amend

ment without costs.

SEC. 2688. When, however, the allegation of the claim or when material. defense to which the proof is directed is unproved in its general R. 2571. meaning, it shall not be deemed a case of variance within the last two sections, but a failure of proof.

time.

SEC. 2689. The court may, on motion of either party at any Amendments time, in furtherance of justice, and on such terms as may be made at any proper, permit such party to amend any pleadings or proceedings R. 2977. by adding or striking out the name of a party, or by correcting a C. '51, 2 1759.

mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleadings or proceedings to the facts proved. [The word "pleadings" in the last line, as in the original, is "pleading" in the printed cod.]

RIGHT TO AMEND GENERALLY: So far as substantial rights are not prejudiced the court should allow amendments on proper terms rather than dismiss the action and compel the party to commence anew: Harkins v. Edwards, 1-296; Seevers v. Hamilton, 11-66.

The rule is to allow amendments; to refuse them, the exception: Pride Wormwood, 27-257; Hinkle v. Davenport, 38-355.

As to amending petition for injunction, see note to § 3386.

ARE PER

WHAT AMENDMENTS MISSIBLE: Where suit was brought by an individual partner, when it should have have been by the firm. held, proper to allow an amendment making the other partner a joit plaintiff: Hodges v. Kimball," 49577; and in such case where a new action would have been barred, held, error to refuse such amendment: Diron v. Dixon, 19-512.

Amendments within the limits of the statute should always be allowed A petition may be amended by when substantial justice will thereby striking out the name of a party be promoted: Dixon v. Dixon, 19-improperly joined as plaintiff: Butch512; Tegler v. Shipman, 33–194; er v. Carlton, 11-47; Hinkle v. DaMiller v. Perry, 38-301. venport, 38-355.

The right to amend is not absolute and unconditional, but rests within the sound discretion of the court: Brockman v. Berryhill, 16–183; Hays v. Turner, 23-214; The State v. Mayor, etc, of Keokuk, 18-388; and such discretion will not be interfered with on appeal unless substantial prejudice is shown: Fulmer v. Fulmer, 22-231.

Before the discretion exercised in granting leave to amend can be held erroneous, satisfactory evidence must be furnished of abuse thereof Phoenix Ins. Co. v. Dankwardt, 47432.

It is not error to allow an amendment to a petition so as to increase the amount claimed: McDonald v. C. & N. W. R. Co., 26–124, 138.

TIME WITHIN WHICH AMENDMENTS MAY BE FILED: Amendments may be allowed in a proper case after the jury are sworn (overruling Cole r. Swan, 4 Gr. 320): Williams v. Miller, 10-344; and, in such case, the jury need not be re-sworn: Hinkle v. Davenport, 38-355. So, they may be allowed during the progr ss of the trial, on proper terms: Arnold v. Arnold, 20-273; or, after the evidence is received, for the purpose The court in the exercise of its dis- of adapting the plea ling to the case cretion must see that the amendment made by the evidence: Ellis r. Lindis substantial, and not a repetition of ley, 37-34; or, after the commencethe former pleading: Harvey .ment of argument to the jury, where Spaulding, 7-423; and if a mere rep- the claim is not changed by the etition, it should be rejected: Mayer amendment: Hammond v. S. C. & r. Woodbury, 14–57.

P. R. Co, 49-450. And, where an The terms upon which an amend-amendment was allowed while the ment may be male rest within the discretion of the court, and its action with respect thereto, will not be reviewed unless abuse of discretion is shown: Harrison r. Colton, 31-16.

WHAT MAY BE AMENDED: A demurrer may be amended, as other pleadings: Morrison v. Miller, 46-84; so may a motion for new trial: Sowden v. Craig, 20-477; so may the return of an alternative writ of mandamus: The State v. Mayor, etc.. of Keokuk, 18-388; and where the verification of a pleading is defective, the court may allow a new verification to be made by way of amendment: Hughes v. Feeter, 18-142.

second argument was being made. the Supreme Court held that they would not interfere with the discretionary power of the trial court in such matters, unless satisfied that the order made was not in furtherance of justice: Smith v. Howard, 28-51.

Where leave to amend was granted after the conclusion of the argument to the jury, and the amendment was filed after the return of verdict, it being slight and only for the purpose of conforming the petition to the proof, held, that it was properly alowed: Correll v. Glasscock, 26-83; so held, also, where the allowance of the amendment was made after the

decision of the court was announced, but before decree was formally entred: Spink v. McCall, 52-432; so, also, where an amendment was allowed after the issue on a plea in abatement had been tried and determined: Hunt v. Collins, 4-56.

| v. Henderson, 47-131. But, in such case, upon a showing of newly discovered evidence, such as would entitle the party to a new trial after decree, amended or additional pleadings, rendered necessary by such evidence, may be filed, and another trial had: Adams Co. v. B. & M. R. R. Co., 44

Amendments after verdict and before judgment to conform the plead--335. ings to the proofs, are generally allowed. It is also allowable, for the purpose of remedying an error, to amend pleadings after judgment, within the sound discretion of the court: O'Connell v. Cotter, 44-48.

After a referee's report has been filed, a party ought not to be allowed to file an amended petition tendering a new issue, and have the case re-submitted to the referee without showing proper excuse for the delay: Newell r. Mahaska Co. Savings Bank, 51–178. Where leave to amend was asked just as the jury was called, for the purpose of interposing a cross action, and was refused, held, that such ruling was not erroneous: Brockman v. Berryhill, 16-18 ;.

Where an amendment to an answer was offered after defendant had made his argument and submitted his cause to the jury, and it did not appear but that it might have been filed sooner, held, not error to strike it from the files: Bays v. Herring, 51-236.

To allow an amendment on a secondrial withdrawing a denial previously made by the pleading, and thus securing for the party so amending. the opening and closing, hell, not erroneous: Bates v. Bates, 27110.

It is too late to amend after a cause is peding in the appellate tribunal: Johnson v. Chaplin, 28–570.

A party may be allowed to amend after the case has been appealed to the supreme court, and been sent back for a new trial: Bebb v. Preston, 3-325: Scott v. County of Chickasaw, 53-47.

Where a demurrer is overruled in the court below, and the ruling is reversed on appeal, final judgment can not be rendered in the supreme court; but the party whose pleading is thus assailed, has a right to amend in the court below: Ware v. Thompson, 29

-65.

After trial of an equity cause de noro on appeal and the filing of a procedendo in the court below, it is error to allow the filing of an amended pleading setting up matter which might have been set up before the trial: Reed v. Howe, 44-300; Sexton

Where, after a decree adjudging to a party the ownership of specific property had been atfirmed in the supreme court, and the cause remanded, such party asked leave to amend his pleadings so as to allege that the property had been converted by the other party, and asking for the return of the property, or judgment therefor, it was held error to refuse leave to so amend: Jones v. C‹ark, 31-497.

In an action pending on appeal from a justice of the peace, new or amended pleadings cannot be filed as matter of right, but may be allowed upon proper terms and a showing of cause for failure to plead below: Dunton v. Thorington, 15–217; Stanton v. Warrick, 21-76; May v. Wilson, 21-79; Warren v. Scott, 32-22; Ping v. Cockyne, 37-211; Adae v. Zangs, 41-536; Clow v. Murphy, 32-695; but they cannot be filed as matter of right: Packard v. Snell, 35-80.

Leave to file, even upon cause shown, is a matter of discretion: Griswold v. Bowman, 40–367.

PRACTICE: An amendment filed without leave of court, or notice to the opposite party, may be stricken from the files on motion. Amendment can only be made by leave of court, except as specified in § 2647: Allen v. Bidwell, 35–86. But an amendment filed without leave should not be stricken out where it would be error to refuse leave to file it: Miller v. Perry, 38-301.

The filing of an amendment which takes the opposite party by surpr se, so that he cannot go to trial, may be a good ground for continuance, but the amendment can not for that reason be stricken from the files: Snediker v. Poorbaugh, 29–488.

The sufficiency of an amendment cannot properly be questioned by way of resistance to a motion for leave to file; but if such motion be overruled, the supreme court, on appeal from such decision, will look into the sufficiency of the amendment to see whether the refusal to allow it worked any prejudice to the party: The State v. Mayor, etc., of Keokuk, 18-388.