OOLE. J
1. Appeal: motion for new trial : constitutional law. There was no motion made in the District Court for a new triaL No jury was demanded or expressly waived, but the cause was tried to the court and the facts and law found, as shown by the foregoing statement. Under our Oode, the pleadings and proceedings in an action in which a mandamus is claimed are the same, as nearly as may be, as in an ordinary action. Rev. § 3~'66; see also, §~ 2611, 2612; and our Constitution provides (a?t~ 5): "Sec. 4. The Supreme Court shall have appellate jurisdiction only in cases in chancery, and shall constitute a court for the correction of errors at law, under such restrictions as the *519general assembly may by law prescribe.” * * * By chapter 49 of Laws of Eleventh General Assembly (Laws of 1866, p. 433,) it is also provided: “ Sec. 2. In any cause tried in the District Court, where the parties thereto waive a jury, and try the same to the court, it shall not be necessary, in order, to secure to either party feeling aggrieved, the right to appeal, that the court shall find the facts and conclusions of law, and make the same a part of the record in such ease; nor shall it be necessary for such party to file a motion for a new trial; but in all such eases, the Supreme Court shall, on appeal, hear and determine the sanie in all respects as if such finding of facts and conclusions of law appeared of record, or a motion for a new trial had been made, whenever it shall appear from the certificate of the judge trying the same, or the agreement of the parties thereto, or their attorneys of record, or, in ease the evidence is all taken by deposition, from the certificate of the clerk of such District Court, that the transcript contains all the evidence introduced by the parties on the trial of the cause in the court below.”
The appellee insists, upon these constitutional and statutory provisions, that, since there was no motion for a new trial, and the cause is an ordinary action, this court must hear and determine it upon errors at law only; and if the law of 1866 seeks to authorize the hearing of the cause as an appeal, that is, a trial de novo, on the merits, as in chancery cases, it is so far unconstitutional and void; and that no error of law can be assigned on the fads without a motion for a new trial.
Heretofore, where a cause was tried to a jury, and a motion for a new trial on the ground that the verdict was contrary to the evidence, was made and sustained, or overruled by the court, this court would review the action of the District Court in sustaining or overruling such *520motion, on the theory that such ruling, if erroneous, was an error of law. Now, while the act of 1866 is most unsMllfully and clumsily drawn, yet a liberal interpretation of it will justify us in holding that the intention of the legislature was to do away with the necessity of a formal motion for a new trial, and to have the court treat the cause as if such motion was made and entered of record. In this view, so much of the act as declares such motion unnecessary, is not in conflict with the constitutional provision above quoted. The statute itself may be regarded as a standing motion in all cases.
2. Corporation municipal : indebtedness: taxation : mandamus. Upon the facts, we need only remark, without reviewing them at length, that they fail to satisfy us that the city can, after defraying its ordinary and J J b . necessary expenses, pay one-half of plamfciff’s judgments each year. The most liberal view will not enable the city to j>ay more than a small margin over the tax realizible from the excess of the valuation of 1868 over that of 1861; that tax will, by the evidence, yield about $2,000, possibly a little over, but not exceeding one-fourth of the aggregate amount of plaintiff’s judgments.
The plaintiff will, therefore, be permitted to take a modification of his judgment, requiring the payment of one-fourth of his judgments, interest and costs, in each of the four years, commencing with 1868, or the judgment will be reversed and remanded for a new trial. In either ease the appellee will pay the costs in this court.
[Reversed.
Dillon, Oh. J., being a resident and tax payer of the city of Davenport, did not sit in this case.