Hatch v. Judd

29 Iowa 95 | Iowa | 1870

"Wright, J.

I. This case is one purely of facts, so far as concerns the merits. It is very difficult to tell upon what basis either the referees or the court proceeded in determining the amount to which plaintiff was entitled. We conclude, however, that the referees took substanially the same view of the testimony (for it was the same in both instances), and of the claims urged by the respective parties. In the district court we infer (and it must be confessed it is mere inference), that the balance due plaintiff upon the respective accounts of the parties with the firm, so far as appeared from the books at the time of the assignment, was excluded, and in other respects the findings were in substantial accord with those of the referees. If this be so, we think the order to this extent was correct, for, as the court below found, it is not reasonable nor probable that defendant was to account to plaintiff for any amount which the books showed that he. had overdrawn. The very terms and circumstances of the sale would seem to forbid this conclusion. But whether the court proceeded upon this or some other view of the case, in reducing the amount found by the referee, we are still of the opinion that the judgment is fully as much as plaintiff is entitled to under the proof. And yet we cannot say that it is too much. Finding, as the referees and district court did (and in this we concur), against defendant, upon his main position that plaintiff was to pay the partnership debts, the judgment is fairly warranted by the evidence. The accounts were very loosely kept, the testimony very conflicting, greatly wanting in definiteness and perspicuity, and after giving it the most careful examination, we are led to believe that the result reached is as nearly correct as could ever be expected from such a record, while courts are finite and parties disagree.

1. practice: mistake as to forum. II. There was no error in overruling defendant’s motion to vacate the judgment. A very large part of the matter upon which plaintiff sought to recover *■ . ° was peculiarly oi equitable cognizance. It related to the settlement of partnership and mutual long accounts. Of course we need not say that chancery has jurisdiction of such matters. If, as to any part or count of the petition, matter was set up which might have been heard at law, defendant could, by motion at the time of filing Ms answer, have had the same changed into ordinary proceedings. Eev. § 2615. He could not, however, treat and try the case throughout as properly pending in equity, and then after judgment move to vacate the same upon any such ground. Rev. & 2619. A. mistake in the selection of the forum,, that is, whether law or equity, is waived by failure to seasonably move its correction. Taylor v. Adair, 22 Iowa, 279; Conyngham v. Smith, 16 id. 473; Savery v. Browning, 18 id. 251; Byers v. Rodabaugh, 17 id. 53.

2. Costs : discretion. III. Plaintiff objects that he was erroneously required to pay half of the costs. Upon this part of the judgment we confess to some doubt. Remembering, however, that. plaintiff failed as to part of his demand, that the costs were increased by this method of trial, as compared with a trial at law, where a part of them might have been adjusted, and that this matter of costs rests very largely in the sound discretion of the district court, we have concluded to leave the judgment in this respect, as in all others, undisturbed. It is one of those cases where the court was justified in making an equitable apportionment of the costs. The plaintiff was not entitled, as a matter of course and of law, to full costs. Rev. § 3449. Arthur v. Funk, 22 Iowa, 238; Whitney v. Hackney, 20 id. 460.

Affirmed.