28 Iowa 539 | Iowa | 1870
If this had been a proceeding in the District Court there could be no question as to the correctness of the order of which appellant complains. For under the sixth subdivision of section 2880 (-Rev.), defendant had a right to plead this equitable matter; and then, by section 2617, the right to have the issue thus presented tried in the manner provided for the trial of equitable issues, is very clearly prescribed. And it would be entirely competent for the court to order, indeed good practice would demand, under ordinary circumstances, that such issues should be first tried and settled. This practice and rule has been heretofore recognized and upheld in this court. Kramer v. Conger, 16 Iowa, 434; Byers v. Rodabaugh, 17 id. 53.
The real inquiry, however, is whether these rules are applicable to a case pending in the Circuit Court. By
This latter proposition is so familiar as not to need support, beyond its mere statement. And having thus decided the very case before us, we need not say more. In what cases the matter pleaded would raise an equitable issue, within the meaning of the statute, or what, if any, general rule could or would be given or established on, the subject, is unnecessary now to announce. Simply remarking that we have found it not free from difficulty, we pass it until it more legitimately arises.
Affirmed.