Clark v. Reynolds

46 Iowa 674 | Iowa | 1877

Rothbook, J.

I. The first question presented is whether the action is triable anew in this court.

l. practice in court'trfáfde novo. It will be observed from the foregoing statement that the amended petition in equity was filed on the 9th day of Eebruar.y> 1875. A demurrer to the amended petition was overruled at the January term, 1876. The trial was had at the June term, 1876. The order providing that the evidence should be taken by the reporter was made at the time the case was called for trial.

We think the record thus made does not entitle the parties to a trial de novo.

Sec. 27 J2 requires that if any party desires to put the case in a position where a trial anew may be had in this court, he may do so by the proper motion, at any time during the appearance term. There are two methods of trial upon written evidence, where it is desired that a trial anew upon appeal to this court may be had. One is by depositions; the other by causing the oral, evidence offered on the trial to be taken down in writing to be certified by the judge. A certificate of the judge, and not the clerk, is required when the evidence is taken by the latter method.

In this case the record does not show that any action was taken by either party, or by the court, at the appearance term, and there is nothing from which it may be presumed such action was taken, and there is no certificate of the judge to the evidence. For aught that appears this order may have been made for the convenience of counsel and the judge in the trial and disposition of the case in the court below. It is no more than an order to take the testimony by the official reporter, as provided for in Sec. 181 of the Code. We frequently have to regret the enforcement of rules like this, as in some instances the effect of the rule produces a different result from what would be reached upon a consideration of the merits of the case. In this case the question is made and insisted upon, and we have no discretion. We cannot disregard the provisions of the statute. We can only consider the case upon the errors assigned, as in a law action.

2^,practice: court. II. The question upon the merits of the case is whether there was such mistake in the written contract as to authorize its reformation. The evidence is to some extent conflicting, and, regarding the finding of the court the same as we would the verdict of a jury, we cannot disturb it, under the rule so often announced here, and which we need not repeat.

It is unnecessary that we should refer to the evidence in detail.

Affirmed.