G-kaNG-eb, J.
I. The assignments of error relating to the appeal from the judgment of Judge Cabsok in i. insahitt: ■ PMs:'fiu'?stion-habeas corpus proceedings are as follows dic- ; “First. The judge erred in assuming jurisdiction to • determine the appellant
a fit subject for treatment in the asylum. Second. The judge erred in adjudging her a fit subject for treatment in the insane‘asylum.” The former assignment relates to the authority of the judge to act; the latter, conceding the authority, to the validity of the acts. The only claim, as we understand, for the first assignment is that the judge had no authority to determine that Mrs. Bresee was a fit subject for treatment in the insane asylum. The question of her fitness for the asylum depended entirely on the fact as to her sanity. The statute giving to a person “confined as insane” the benefits of the writ of habeas corpus provides that at the hearing “the question of insanity shall be decided.” Code, sec. 1444. The alleged restraint by the commissioners was the result of a determination by them that she was such a subject. The record in no way indicates to us that any other question was involved in the hearing before Judge CaesoN, and the inquiry and determination-was entirely legal.
*577II. The abstract contains no part of the evidence, and we are without any means whatever to determine the review on appeal: record. 2 _.__ correctness of the second assignment. It is said that the appellant had not the means or opportunity to preserve the evidence, there being’ no clerk or reporter; but, notwithstanding, how can we say the court erred without the facts, or the means of knowing them? We are not to presume error because of a difficulty in presenting the record on which it is assigned. It is a law proceeding, and we adjudge error only on an affirmative showing.
III. The appeal from the action of the court, on the motion to dismiss the appeal and affirm the order of 3_._.■ fórmeradju-dicaüon. the commissioners, presents the question whether the adjudication in the habeas corpus proceeding operates to deprive the appellant of the right to another trial in the district court on her appeal. It is especially urged, in support of another trial, that the appellant was entitled to a trial by jury in the district court. The determination of this question is important. It is purely a special proceeding, and hence, technically, not a “civil action,” which is defined to be a proceeding in which one party, known as the “plaintiff,” demands against another party, known as the “defendant,” the protection of a private right or the redress of a private wrong. Code, sec. 2505. Being another remedy in a civil case it is a special proceeding. Code, sec. 2507. Special proceed- . ings are not classed as “ordinary” or “equitable” by the Code, and we may now consider its provisions as to what causes are triable by jury. Section 2740 is as follows : “Issues of fact, in an action by ordinary proceeding, must be tried to a jury, unless the same is waived. All other issues shall be tried by the court, unless a reference thereof is made.” The issues in this proceeding are “other” than those “in an action by ordinary proceedings,” and, hence, under the letter of the statute, are to be tried by the court. It may be well here to observe that proceedings denominated as “special” have been in this court, where the issues *578below have been tried to a jury; but an examination will show,- we think, that in each of such cases the proceeding, if special at its inception, had so changed in its progress as to present parties plaintiL' and defendant with private rights to be determined, and, hence, became an action by ordinary proceedings.
It is urged that the appellant was entitled to a jury trial in the district court, under the constitutional guaranties that the right of trial by jury shall remain inviolate; and in all criminal prosecutions, and in cases involving the life or liberty of an individual, the accused shall have a right to speedy and public trial by an impartial jury. These provisions are found in sections 9 and 10 of article 1 of the constitution of the state. In Black Hawk Co. v. Springer, 58 Iowa, 417, this court considered the rights of a person charged with insanity to a 'trial by jury under these provisions of the constitution, and held that they applied “only to criminal prosecutions or accusations for offenses against the criminal law, where it is sought to punish the offender by fine or imprisonment.” It is also there determined that the “ inquest of lunacy ” is not a criminal proceeding. Chavannes v. Priestley, 80 Iowa, 316" court="Iowa" date_filed="1890-05-28" href="https://app.midpage.ai/document/chavannes-v-priestley-7104513?utm_source=webapp" opinion_id="7104513">80 Iowa, 316. It thus appears that the constitution does not impair the statutory authority as to how the issues in such a proceeding are to be tried.
With the question of the right of trial by jury disposed of, we are better prepared to consider the action of the court in dismissing the appeal, as that was the effect of the holding. Looking back to the statement of the ^ase, it will be seen that in the habeas corpus proceeding Emma Bresee was determined to be of unsound mind, and a proper person for treatment, at the hospital for the insane, upon evidence introduced by the parties. In fact, her sanity seems to have been the only question tried and determined. The case, on its merits, involves no other controversy. If her condition is as it was adjudged to be in the habeas corpus proceedings, she is rightly committed to the asylum. The question for us is, having had one trial on the merits of her case, before *579the judge at chambers, is she entitled to another snch trial by him' in court? The merit of the rule to be announced may be better seen by supposing the writ to hare issued by the court, and not by the judge in vacation, and the hearing to have been by the judge sitting as a court. Would the appellant, having on one day submitted her case on its merits to the court in the habeas corpus proceeding, be permitted to repeat it the next day, on her appeal, because only of the difference in the kinds of proceedings ? We think not. Without committing ourselves to any undue limitations upon the right of a party to test the legality of his restraint by a resort to the writ of habeas corpus, without impairing the right to other and further judicial inquiry, we think, in view of the abundant and liberal provisions of our law for the protection of persons charged with insanity, and its requirement that. in habeas corpus proceedings the actual fact as to insanity shall be determined, with the right of appeal from the judgment, that the appellant was not entitled to another trial of the same issue. The contention by the appellant, we think, has been largely induced by the belief that, in a trial on the appeal, she should be entitled to a jury; which fact, if true, would present qriite a different case for consideration.'
IY. It is urged that á motion to dismiss was not the proper method of disposing of the appellant’s case 4 _. practioe. ’ disposal oi ‘ 011 appeal. It appears from the findings, in disposing of the motion, that all the proceedings and orders m the habeas corpus proceedings were on file in court, and are so shown by the papers in this proceeding. With this condition of the record, the court could take judicial notice of the facts, and pleadings and proofs were unnecessary to establish them. With the facts thus in the record, the court could act upon a motion in dispos-. ing of the appeal.
Y. After the ruling on the motion to dismiss the appeal, the court made an order committing the *580appellant to the insane hospital at Mt. Pleasant. It is said, that the court was without jurisdiction to make the order; that commitment to dsyium. the commissioners alone have such authority, except alter trial on appeal in the district court. The appeal was dismissed because of the conclusiveness of the findings and orders in the habeas corpus proceeding. The order in that proceeding was that “Emma Bresee be, and she is hereby, remanded to the care and custody of the proper officer of said county, as provided by law.” The legal effect of dismissing the appeal, without other . orders, would have been to leave her under the order of Judge Caesok, to be dealt with under the order of the commissioners, and such a course would have been entirely proper. The order of the district court is not different in effect, but the objection is that it was made without authority, and that she should not be committed by virtue of it. Any force the objection has will be avoided by such a modification in this court of the order of the district court as to merely dismiss the appeal. This we may do where the facts are settled, and the effect is to enter such an order as the district court should have made. Gilmore v. Ferguson, 28 Iowa, 422" court="Iowa" date_filed="1869-01-12" href="https://app.midpage.ai/document/gilmore--smith-v-ferguson--cassell-7094465?utm_source=webapp" opinion_id="7094465">28 Iowa, 422; Shaw v. Nachtwey, 43 Iowa, 653" court="Iowa" date_filed="1876-06-19" href="https://app.midpage.ai/document/ex-rel-shaw-v-nachtwey-7096956?utm_source=webapp" opinion_id="7096956">43 Iowa, 653 ; Code, sec. 3194.
YI. We are asked, in casé our conclusion should be against the appellant on questions presented, to 6.-: commission for examination of insane-persons: power of supreme court to appoint. appoint a commission under the provisions of Code, section 1442, to inquire into the fact of the appellant’s sanity ; and rule 7 of this court is cited as authority for us to so act. The section authorizes the judge of the district court, under certain conditions, to make such an appointment, but confers no such authority on this court. Buie 7 provides that “the supreme court has a general supervision over the district and superior courts, and all other inferior judicial tribunals, to prevent and correct abuses,” etc. Withont even intending a ground for inference that we could, with the facts otherwise, make such an appointment, we may say that the record fails to make any showing of abuse for us *581to correct or prevent. Tlie argument proceeds largely upon a claim of abuses and illegalities, but the record is a plain showing of two separate inquiries, under the forms of law, as to the sanity of the appellant, — one by_ the commissioners sitting as a board, and the other by a judge of the district court; the findings of each being, upon evidence submitted, that the appellant is insane, and a proper subject for hospital treatment. .Nothing in the record affords even a suspicion that the proceedings were not legal and regular, and the findings are fully supported by the evidence. If the facts are otherwise, the mistake is in presenting a record from which the facts are hot to be known. We may properly and .profitably look to arguments to aid our conclusions from the record, but we cannot look to them for facts which it is the province of the record to disclose.
The order entered in this court, October 20, 1890, at the instance of the appellant, is revoked, and the judgment on both appeals, with the modification indicated, ÍS AEEIEMED. ,