45 Iowa 253 | Iowa | 1876
The appellee insists that under these circumstances there cannot be a trial de novo in this court, and such was the ruling in Walker v. Plummer, 41 Iowa, 697, which has been followed in several other cases since that decision.
It is insisted by appellant that inasmuch as a trial de novo in equity causes is guaranteed by the Constitution, any statute which destroys or takes away such right is unconstitutional. In so claiming the appellant is undoubtedly sustained by Sherwood v. Sherwood, 44 Iowa, 192.
A party may be entirely willing to submit his cause to a court before whom the witnesses are examined orally upon a certain amount of testimony, but would be unwilling to so submit it if he knew there was to be a trial de novo in this court. Hence the necessity of the motion, or some other action in the court below equivalent thereto.
The theory of the statute is that the parties shall be advised at the appearance term whether a trial de novo will be insisted on in this court, in case there is an appeal, so they may prepare their testimony accordingly.
II. The evidence was not preserved by bill of exceptions, nor was there any finding of facts, motion for a new trial, or exception taken to the judgment, or any other ruling of the court helow. Error, however, is assigned that “under the pleadings and evidence the plaintiffs were not entitled to the relief prayed for and given by the decree.”
The appellee insists that such a record, presents no question this court can try and determine.
As there can be no trial anew the defendant has the right to have any errors of law committed by the District Court which were duly excepted to and assigned as error determined. But the difficulty is, no exceptions were taken, and therefore
Besides this, under the assignment of error nothing can be considered by us unless the cause has been placed in such a position as to enable us to review the finding and decision of the court on the facts as well as the law. Dean v. White, 5 Iowa, 266.
The judgment of the District Court is therefore
Affirmed.