134 Iowa 523 | Iowa | 1907
This is the second appeal in this case. The opinion on the former appeal, reversing a decree of the court below, rendered in favor of plaintiff, will be found in 117 Iowa, 598. On reference to that opinion, it will be observed that the lands in controversy are part of a grant made by the general government to this State to aid in the construction of a. railway; the particular tract being within what
The primary contention of appellants — and we shall have no occasion to discuss any other — is that the court erred in sustaining plaintiff’s motion to set aside the former submission and in granting a further hearing. Now, in general, remand of a case in equity after reversal of the decree takes it back for a decree in harmony with the opinion. The case does not go back for a new trial. It is true, however, that a plaintiff who has suffered a reversal in this court of a decree may go into the District Court, and, on proper showing, and for proper purposes, have the former submission in that court set aside and the case opened for the purpose of a further hearing. Adams Co. v. Railroad, 44 Iowa, 335. Leave to do so, however, is discretionary with the court, and may not be demanded as matter of right. It will be granted only in furtherance of justice, and the showing must be such as ordinarily would entitle a party to ai new trial — thus, to permit the introduction of material evidence, omitted by excusable inadvertence, or where material évidence, not cumulative, has been discovered since
With the state of the law and the fact situation in mind, we may now turn our attention to the character of the showing for retrial made by plaintiff. Beduced to a sentence it is this: That at some time prior to the decree first entered counsel for plaintiff was misinformed hy the officials of the land office at Des Moines as to the date on which selection of the lands had been made by plaintiff, and the date on which such selection had been approved; that, in view of the grounds on which the reversal of the decree was placed, such dates had become material. Added to this is an averment in general terms of ordinary diligence. We do not see how this showing can be held sufficient. Individually, counsel may not have known of the date of selection, but we do not see how plaintiff could be in doubt as to such date. It had made the selection, and must be held to have known that this occurred, as was subsequently shown, in the year 1872.
It follows that the decree appealed from must be, and it is, reversed; and the case is ordered remanded for a decree in conformity with our opinion on the former appeal. — Reversed.