69 Iowa 255 | Iowa | 1886
The only question which we deem it proper to consider, in the present attitude of the case, is as to the correctness of the action of the circuit court in transferring the cause to the law docket, and trying it as an ordinary action. It was held by this court in Bushnell v. Robeson, 62 Iowa, 540, that section 3331 of the Code, which provides that an action at law for the abatement of a nuisance and for damages may be maintained by any person who has been injured thereby, did not abrogate the equitable remedy existing before the enactment of that statute, but that the remedy which was administered by courts of equity in that class of cases before the adoption of the Code continued to exist, and that the right to prosecute the action in a court of equity was preserved by section 2508. This holding is conclusive of the question before us. Plaintiff had the election to prosecute liis action either at law or in equity, and, having brought it in a court of equity, he had the right to have it tried in the manner prescribed by the statute.for the trial of equitable actions.
The j udgment will be reversed, and the cause remanded, with directions to the circuit court to set aside its order transferring the case in the law docket, and to permit the parties to try it as an equitable action. Beveesed.
