
    Robinson v. Erickson et al.
    
    Amendment: repetition of former pleading: costs. It is not error to sustain a motion to strike from the files an amended petition which contains no new averment, and which is hut a repetition of the original one. But it is erroneous, upon sustaining such motion, to render judgment for costs against plaintiff, as upon a trial.
    
      Appeal from WinnesheiTc District Oowrt.
    
    Wednesday, June 10.
    Plaintiffs appeal from the action of the court below, sustaining defendants’ motion to strike from the files their amended petition. They also com plain that there was error in rendering judgment for costs against them, as upon a trial, after sustaining said motion.
    
      Jno. T. Clarke for the appellants.
    
      L. Bullis for the appellees.
   Wright, J.

In sustaining the motion to strike, the court did not err. The amended petition contained no single averment material to the ascertainment or settlement of plaintiffs’ rights not found in the original. It was but the repetition of the former pleading. The fact that it was filed with leave of court makes no difference. The court does not ordinarily look into the contents of a proposed amended pleading when it is offered for filing. Neither, as a rule, has the opposite party any thing to do with such permission. When filed, it is subject to inspection, and its sufficiency or relevancy to attack.

The court grants the leave to file, almost as a matter of course. The cases in 18 Iowa, 388 (State v. Mayor of Keokuk); 22 id. 230 (Fulmer v. Fulmer), cited by appellants, so far from teaching a different doctrine, fully sustain what is said above. And see, also, Meyer v. Woodbury (14 id. 57); Brockman v. Berryhill (16 id. 186). Appellees confess that there was error in rendering judgment against plaintiffs after sustaining the motion to strike out, and concede that plaintiffs should have judgment for the amount of the notes described in the original petition, less the payments admitted, and the damages ($100) claimed in the answer, for fraud and breach of warranty in the sale of the horses, forming the consideration of said notes. And this, under the pleadings, is unquestionably correct. The cause is reversed, with instructions to render judgment in plaintiffs’ favor for the amount of the notes, less $100, as of their date, and the payments admitted in the petition. Defendants will pay the costs of the appeal.

Reversed.  