dissenting. Whether or not the petition states a cause of action, I deem it unnecessary and improper to determine. Conceding that it does, 'the question then is whether it can be presented for the first time in this court; or, if this be not so, then what evidence is there in the record that such question was presented to the circuit court? It has been held time and again that this court will not determine any question not presented to the court below; and it has also been repeatedly held that such question must affirmatively appear from the record, and that no other evidence is competent. The assertions and claims of counsel *750must, of coui’se, be disregarded. I do not mean that tire reasons urged in argument must appear of record, or- that none other can be urged here than those presented to the court below; but that the question we' are asked to determine must have been presented to the district or circuit court.
It becomes essential to state with particularity the theory upon which this case was tried in the circuit court. No objection was made to the petition by either motion or demurrer. The answer did not set up as a defense that the plaintiff was not entitled to recover because no cause of action was stated in the petition; nor was it so objected during the introduction of the evidence. The instructions given are based on the theory that a cause of action was stated in the petition. No instruction was asked on any other theory. It is, therefore, apparent that the case was tried and submitted to the jury on the theory that, if the plaintiff had established the allegations of the petition, he was entitled to recover. There was a verdict for the defendants, and the plaintiff filed a motion for a new trial, on the grounds, First, that the court erred in the= admission and rejection of evidence; Second, that the court erred in refusing certain instructions asked by the plaintiff; and, Third, that the court erred in the instructions given. The motion was overruled, and the plaintiff appealed.
The foregoing opinion is based on the thought that, when this motion was presented, it was competent for the court to overrule it on the ground that no cause of action was stated in the petition. Conceding this to be so, what evidence is there that any su.ch reason ever was urged ? The record forbids, in my judgment, that any such presumption should be indulged, but that, on the contrary, such a presumption only should be indulged as is consistent with the record.
This court is a court for the correction of errors in actions at law. Such errors are only those committed by the district or circuit court. It is not our province to correct errors or *751mistakes of counsel,-or those which have been waived by them.
When no objection is made to a petition by motion, demurrer or answer, all defects therein are deemed waived. Code, § 2650. It is true that this section further provides that, if the petition fails to state facts entitling the plaintiff to any relief whatever, advantage of such defect may be taken by motion in arrest of judgment. But in such case the party in fault has the right to file an amended pleading, and thus avoid the effect of the motion. Code, § § 2842, 2843.
In this case, the objection that no cause' of action was stated in the petition, was undoubtedly waived. In a certain contingency, however, the right to present the objection to the court, notwithstanding the waiver, might arise, and that would be in case there was a verdict for the plaintiff. But, as the verdict was for the defendants, the waiver continued to exist; because the right to make the objection could, under the statute, only be made in case the verdict was for the plaintiff. If, under the pleadings and issues, the court had instructed the jury that the plaintiff could not recover because no cause of action was stated in the petition, and the defendants had obtained a verdict, this would have constituted reversible error. Nollen v. Wisner, 11 Iowa, 190. As I understand, there is no distinction in principle between the cited case and the one at bar. It is there said: “We suppose the only method by which the defendant could make available the insufficiency of" the petition is. First, by demurrer; Second, by motion in arrest of judgment in the court below. Neither of these methods was adopted by him, nor did he prove any of the defenses which .he had pleaded. Still he is discharged, and obtains a judgment against the plaintiff for costs. The plaintiff proves his cause of action as laid, but fails to get judgment. Now, how was this effected? Simply by the charge which the court gave. * * * The matter of this instruction is entirely outside of the pleadings and issues in the case.”
*752I am unable to see that Code, § 2686, aids the conclusion reached in the foregoing opinion. There is no question made as to a variance between the allegations of the petition and the evidence introduced. Courts cannot dictate to a party as to the manner of trying his case, or what questions he shall or shall not present and have determined.
It is true that § 2690 of the Code provides that the court must in every stage of an action disregard any error or defect which does not affect the substantia] rights of the adverse party. This section is evidently in aid of a party who commits the error or mistake. It was enacted for his benefit, and not for the benefit of his adversary. In this case, the mistake, if any there is, was committed by the plaintiff. Instead of disregarding it, such potent effect is given thereto as to deprive the plaintiff of a substantial right; and that is, the right to amend, and state, if he can, a cause of action.
It cannot be said that any error was committed or mistake made by counsel for the defendants. Certainly the failure to present the objection that, no cause of action was stated in the petition by demurrer cannot be so regarded.
We have no doubt counsel deliberately took the course they did. The distinguished counsel for the defendants, no doubt, had a clear perception of the petition, and whether or not a cause of action was therein stated, and tried their case accordingly. Having so done, they should not now be permitted to have it tried in this court on any other theory.
Believing, as I do, that the foregoing opinion overrules the settled practice, and that great confusion and uncertainty will, at least for a time, exist as to the practice, is my excuse for the length of this dissent.