119 Iowa 314 | Iowa | 1903
So, too, the ruling on a motion or demurrer may be reviewed in passing on the merits when the propriety of finally disposing of the case is not involved. But it seems to be quite well settled in this state that rulings which go-to the very right to a hearing de novo and a determination, on the merits' cannot be questioned without an assignment-of error. As said in Powers v. O'Brien County, 54 Iowa, 501, after referring to several statutes: “When an equitable case is tried anew upon an appeal to this court, that-is ordinarily an end of the controversy. It is a trial anew of the whole controversy between the parties. But where there is an appeal from an order sustaining or overruling a demurrer or motion, and there has been no trial anew in this court of the whole controversy, the general rule is that the cause is left in such condition as to require that.
In these decisions some importance is attached to standing on the ruling, but this can make no difference. If the error is such that it resulted in denying a hearing on the merits when such hearing ought to have been granted, or awarded that right when it should have been denied, it is an error at law, and must be assigned before becoming the subject of review. To illustrate: A division of the petition is stricken on motion or held insufficient on demurrer, and the plaintiff insists that he was thereby deprived of a hearing on a meritorious claim. His contention is not simply that the ruling was erroneous, but also that because of it he has been deprived of the hearing the law guaranteed him. So, toe, where evidence has been excluded by the trial judge and is not contained in the record. If material and admissible, the ruling has precluded a hearing on the merits. The same effect would follow the reversal of a ruling which has sustained the transfer of a cause to the equity side of the calendar or denied a transfer to the law side. In such cases the errors do not inhere in the trial de novo, but go to the extent of depriving this court of its appellate jurisdiction, and therefore are purely errors of law. In the instant case the denial of the change of venue, if deemed erroneous, would end the power to hear on the merits, and. result in remanding the cause for a new trial.
The unfailing test in determining the advisability of assigning errors in an equity case is found in answering whether the right to a hearing on the merits is challenged. If any ruling, whether on a motion or demurrer or in rejecting evidence, involves the right of this court to hear