12 Iowa 585 | Iowa | 1862
This was an action of right, and in the court below the defendant moved to transfer the same to the equity docket, and consolidate it with the cause in equity entitled R. W. Sypher v. A. L. Robertson and M. D. McHenry & W. H. McHenry, defendants; alleging in substance that before this suit had been instituted, he had filed his petition in equity to set aside the sale of the identical property in controversy made by the trustee, and to cancel and set aside the deed under which the plaintiff in this action claims title to the property in controversy. The motion further stated that the same questions are involved in this cause which are involved in said action in equity, and that the defendant must and would make for his answer to the petition in this case the same statements and averments made in his peti-. tion in the case aforesaid in equity; that the statements of said petition, so far as made from his own knowledge, are
This motion was sworn to, sustained, and the transfer made as asked; from which order the plaintiff appeals, alleging as the chief ground of error, that the order for the transfer and consolidation was premature and could not be properly made until an issue had been made in this case.
We first remark, that this clearly does not fall within the description of cases contemplated by § 2980 of the Revised Code. Nor does it fall within the purview of § 2616, for that section was intended to cover a class of cases which had been commenced on the law side of the docket as ordinary suits, but which, by the facts disclosed upon their face, are shown to be of an equitable character, to be prosecuted on the equity rather than on the law side of the docket. This case is not of this description, for it is clearly an action of right to recover the possession of land. There is nothing upon its face that is of an equitable nature.
The Revision of 1860, however, contemplates still another class of eases, and that is where an equitable defense is set up to an ordinary suit at law. In such a case the defendant is entitled to have the issue tried as in cases of equitable proceedings, according to the provisions of § 2617. When the court is satisfied from an inspection of the pleadings, that the defense does partake of this character, it will, upon application, transfer it to the chancery docket.
This section requires that the issue shalll be made, in order that the court can be able to determine intelligently whether the defense is of an equitable nature, and for that reason to grant the application. It was upon this last named section of the Code that the motion in the case at bar
The order, therefore, will be
Reversed.