121 Iowa 706 | Iowa | 1903
There is some confusion in the record, but therefrom we extract the situation to be as follows:
It is somewhat difficult to state just what position in the case Maud Manuel intended to or did, occupy. It’ seems to have been conceded that she was a necessary party, and this was undoubtedly true. We think her pleading may be taken as the answer of a defendant brought in, and'the proceedings had indicate that she was so regarded by tlie other parties and by the court. Now, upon the issue joined, the cause proceeded to trial,-and a jury was impaneled and sworn without objection. Before the taking of evidence commenced, the court, having announced that the issue was of an equitable character, triable to the court alone, on its own motion dismissed the jury, and ordered that the trial proceed before the court. To this said Maud Manuel made objection, and, predicated on the action taken, she now assigns error. We think her contention must be sustained. Section 8945 of the Code provides that, in the event of the answer of a garnishee being controverted, an issue may be joined, which “shall be tried in the usual manner,” etc. With
And we think this may be true even though the fraud may involve some previous transfer of real property. As the record may not be the same- upon another trial, we need not discuss other errors assigned. For the error pointed out, a new trial must be granted, and the cause will be remanded for that purpose. — JReyeused.