Reno v. Teagarden
24 Iowa 144
Iowa
1867
Check Treatment
Cole, J.

1.'úmwoiioir- ' ctedings "at >law-The petition' sets out a cause of action requiring equitable relief aside from the replevin suits an<^ ^e injunction against the prosecution thereof. The accounting for the profits of the press and materials during the time they were used by I. J. Teagarden now deceased; the ascertainment of the interest of each owner by reason of the additions to the material, as well as the priority of right and lien for any balance on the accounting, are matters of equitable cognizance and could not be adequately adjudicated in actions of replevin. Prior to the trial or determination of the replevin suits or either of them, it is reason, ably clear, that upon the allegations of the petition, the plaintiffs would be entitled to an injunction until the. final hearing of the equity cause. This being so, the only point of difficulty in this case arises upon the fact of the adjudication of plaintiffs’ action of replevin and the overruling of the motion for a new trial therein.

If it be conceded that upon an appeal from an order of court, or of a judge at chambers, allowing an injunction, the affidavits used in resistance thereof may be considered by the appellate court; even then, we are of the opinion that there was no such manifest error in the discretion of the court in allowing the injunction as would justify us in reversing the order. The trial of the replevin cause was before the time fixed for the trial thereof; it was in *149the absence of the plaintiffs’ counsel; the judgment for the value of the property replevied was more than three times as much as the value fixed under oath by the party, under whom the defendants therein claim all their rights, only three days before the writ of replevin in this case was executed; the amount awarded for the detention thereof was nearly twice the sworn value of the property. In view of these facts it may well be conceded that the judgment was most inequitable and unjust.

2. judgment: vacatefnJw® tnaL The question then remains, whether the plaintiffs by' their motion for a new trial, which was overruled by court, have lost their right to a new trial (Or have the cause retried in equity. So far ks the petition in this case may be regarded an application for a new trial or to vacate the judgment in the replevin suit, it seeks that relief under the 4th subdivis-\ ion of section 3499 of the Revision: “For fraud practised by the successful party in obtaining the judgment.” The proceedings by which to obtain this relief is by petition verified by affidavit setting forth the judgment, etc., Revision, section 3501. The fact that a motion for a new trial had been previously filed, based upon other grounds (as in this case) and overruled, would not defeat the right to have the judgment or order vacated or modified under and for the cause specified under the fourth subdivision as above quoted, hi or is there any good reason why such application may not be united with other facts than those directly connected with the cause in which the new trial is sought, when such facts constitute a defense to the claim upon which the judgment was founded. Such a course seems to be contemplated by sections 3501, 3502, 3503, 3504 and 3505; and an injunction is specially provided for by the last section referred to.

Affirmed.