Moses v. Continental Insurance

40 Iowa 440 | Iowa | 1875

Miller, Ch. J.

The action, although brought to recover on a fire insurance policy upon a loss of the property insured, 1. practice in court-^qSi-tame actions. aQC*- a ref'llsal of the defendant to pay the loss, is commenced by equitable proceedings; whether cór-rectly so or not we will not determine. Appellant’s counsel, however, have brought the evidence upon appeal, and are insisting on a trial anew in this court thereon. In order to be entitled to sncli trial, in equitable actions, tbe party desiring it must move the court, during the appearance term, for a “ trial upon the written evidence,” whereupon the court must “ either order all the evidence to be taken in the form of depositions, or shall cause all the evidence offered on the trial to be taken down in writing to be certified by the judge and made a part of the record according to the requirements of the motion.” This was not done; no motion was made of the character required by the statute. No order was made by the court that the evidence should be -reduced to writing. It is not certified by the judge and made part of the record, as the statute requires. The record simply shows that on the request of the attorneys, R. T. T. Spence, Esq., was appointed by the court to take the testimony in the case. Whether he did take it and reduce it to writing is not shown in the record, and the evidence contained in the abstract is not certified by the judge as having been reduced to writing upon the motion of either party. It is not made a part of the record. This being the case the cause comes before us on appeal as a law action for the correction of errors in law.

The errors assigned are not urged in argument by appellant’s counsel, and will not, therefore, be noticed or passed upon by the court.

The entire argument of appellant’s counsel is devoted to a discussion of the issues of fact upon the evidence. The evidence being conflicting, and the court below having decided upon such conflict in favor of the plaintiff, we cannot disturb the finding of the court. It stands as the verdict of a jury. We may, however, properly say that after a careful reading of the evidence and the arguments of counsel we should, if the case was before us for trial anew upon the evidence, concur with the learned judge of the District Court, and affirm the judgment.

AFFIRMED.