
    Dunton v. Thorington et al.
    
    1. Additional pleadings on appeal. The filing of further pleadings may be permitted, upon proper terms, by the District Court, in causes therein pending on appeal; and the Supreme Court will interfere with such an order only when it is clear that prejudice has resulted therefrom.
    
      Appeal from Scott District Court.
    
    Wednesday, October 14.
    
    The defendant Thorington was sued upon a note, by attachment, before a justice of the peace, in which the appellee was garnished. All indebtedness being denied by answer, the plaintiff filed a special replication thereto, to which was interposed a demurrer. Upon hearing, this demurrer was overruled. The pleader standing thereon, a judgment was rendered, both against the principal and the garnishee, for the amount of the note. On an appeal to, and argument in the District Court, it was again held that the demurrer was not well taken, and the same was accordingly overruled. This being done, the garnishee took issue upon the facts set forth in the special replication; and thereupon the plaintiff moved the Court to strike said rejoinder from the record in the cause, and to affirm the judgment below, for the reason that it was not competent to file a new pleading after an appeal to the District Court. From an order overruling this motion, the plaintiff appealed to this Court, and the appellee moves to dismiss the appeal, upon the ground that it does not fall within the description of intermediate orders from which, under the Revision of 1860, an appeal is authorized.
    
      3. B. Brown for the appellant.
    
      Putnam and Rogers for the appellee,
    cited Griffin v. Moss, 3 Iowa, 261; Gilson v. Johnson, 4 Id., 463; Rev. of 1860, § 3932; Hall v. Monahan, 1 Id., 554; Taylor v. Rockwell, 10 Id., 530; Ruddickr. Vail, 7 Id., 44; Graves v. Heaton et al, 11 Id., 169.
   Lowe, J.

The question, whether the motion to dismiss the appeal, in this case, should have prevailed, for the reason specified, it is not important to determine, as we have but little difficulty in disposing of the case on the merits of the particular question upon which the cause has been brought into this Court,. namely, whether the Court below erred in refusing, under the circumstances mentioned, to strike from the files the said rejoinder.

It is a question of some doubt whether, under the statute, a rejoinder was necessary to complete the issue. If not, then, of course, there was no prejudice to appellant in refusing to strike it from the files. If it is necessary, then, under the circumstances, we are satisfied that the Court did not abuse its discretion in allowing the same. While the filing of a further pleading may not be a matter of right in appéal cases, we are satisfied that in some cases, upon proper terms, it may be permitted; and such permission will not be interfered with, unless it is clear that prejudice has resulted from such order. §§ 2917, 2895, 8208 Revision of 1860.

Affirmed.  