Kershman v. Swehla
17 N.W. 908
Iowa
1883
Check Treatment
Beck, J.

I. Uрon a former appeal by defendant in this cаse, the judgment of the circuit court ‍‌‌​​​​‌‌‌​‌​​​​‌​‌‌‌‌​​​​​​‌​‌​​‌​‌​​​​​​​​​​​‌‌‍was reversed, and the cause was thereupon remanded to the court below. See 59 Iowa, 93. Upon the filing of a proeedendo in the circuit court, the defendant moved that a decree be entered in his favor. ‍‌‌​​​​‌‌‌​‌​​​​‌​‌‌‌‌​​​​​​‌​‌​​‌​‌​​​​​​​​​​​‌‌‍The motion was overruled, and from this decision dеfendant appeals.

II. Upon the former aрpeal the decree, which was against defеndant, was reversed, on the ground that the circuit court erred in overruling a motion to suppress certаin depositions. This decision was to the effect that the depositions were taken without authority of law, and, ‍‌‌​​​​‌‌‌​‌​​​​‌​‌‌‌‌​​​​​​‌​‌​​‌​‌​​​​​​​​​​​‌‌‍for that reason, were not competent to be read in evidence. Of course, as the depositions were not admissible as evidence in thе circuit court, they were not competent evidence in this court. The evidence embodied in thеm was not considered. The cause was not tried de novo оn its merits, but was remanded for further proceedings in the сourt below. The reason that it was not tried here оn its ‍‌‌​​​​‌‌‌​‌​​​​‌​‌‌‌‌​​​​​​‌​‌​​‌​‌​​​​​​​​​​​‌‌‍merits was that the evidence for the plaintiff was not in a form to be lawfully admitted. As the cause was not triable de novo, it was competent for the court ‍‌‌​​​​‌‌‌​‌​​​​‌​‌‌‌‌​​​​​​‌​‌​​‌​‌​​​​​​​​​​​‌‌‍to review it upon errors assigned. Cross v. The B. & S. W. R’y Co., 51 Iowa, 683. Upon discovering that errors had been committed, by reason of which the cause could not be tried upon its merits, it was the duty of this court to remand the cause to the end that thе decision of the court below should be cor rected. It was neither proper to dismiss plaintiff’s aсtion, nor to render a decree for defendant. In case either had been done, justice would have been defeated by a decision *656without a triаl in which the real merits of the controversy were brought before the court for decision For the samе reason, when the cause was remanded, the court below could neither dismiss it nor render a decree for defendant, but was required, to try it anew, correcting the errors pointed out in the decision of this court. Jordan v. Winser & Snyder, 48 Iowa, 180; Sweet, Ex'r., v. Brown et al., 61 Id., 669. The circuit court rightly overruled defendant’s motion for a decree in his favor.

III. The plaintiff ashed for time to file affidavits to show that no appeal had been taken in the case, etc. This application was refused, and the cause was continued and set down for trial upon deposition. As plaintiff did not appeal, and defendant does not complain of these rulings, we cannot review them. It mаy be remarked that, as the cause was continuеd, plaintiff had what he asked for — time to file affidavits. And the court, in setting the cause down for trial on depositions, acted under authority of the statute. Code, § 2742. The decision of the circuit court is

Affirmed.