44 Iowa 192 | Iowa | 1876
Lead Opinion
“ Sec- 2741. All issues of fact, whether ordinary or equitable, shall be tried upon oral evidence taken in open court, except that depositions may be used as now provided in an action by ordinary proceedings; and upon appeal, no evidence shall go to the Supreme Court, except such as may be neces•sary to explain any exception taken; and such court shall try only legal errors duly presented.
“Sec. 2742. But in equitable actions, other than actions to foreclose mortgages or instruments in writing whereby liens or charges on' property are created, not including trusts, to enforce mechanic’s liens, or for divorce or nullity of marriages, if any party shall at any time during appearance term, move the court for a trial upon the written evidence, the court shall 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. In either of such cases, all the evidence so taken shall go on appeal to the Supreme Court which shall try the cause anew.”
By Sec. 4, Art. Y, Const, of Iowa, it is declared that “ the Supreme Court shall have appellate jurisdiction in cases of chancery, and shall constitute a court for the correction of errors at law. ****.”
The evident meaning of Sec. 2742 is to except an action for divorce from those equitable actions wherein all the evidence shall go on appeal to the Supreme Court for the trial of the case anew there. The difference between a court having appellate jurisdiction proper, and a court for the correction of errors at law is, substantially, that the former tries cases de novo, and renders such judgment as should be rendered upon the facts and the law, while the latter simply inquires into the alleged errors of law only. Under our Constitution the Supreme Court has appellate jurisdiction only in chancery
By Sec. 2742, supra, it is recognized as an equitable action, and Sec. 2511 declares that it shall be prosecuted as such. It being an equitable action, a right of trial by jury does not exist, and there was no error in refusing it. It would have been competent for the court to have had the issue respecting the alleged adultery tried by a jury in order to advise the conscience of the court, and this in analogy to the English Chancery Practice. A refusal to do so, however, constitutes no ground for interfering with the judgment. But since the action of divorce is an equitable action, it comes to this court by appeal proper and is triable here anew, under the Constitution, regardless of the general provisions of Sec. 2742, supra.
We have, severally, carefully read, and some of us have re-read all the evidence in the case, and we are entirely united in the opinion that the fair preponderance of the evidence establishes the claim made by the plaintiff in her petition. It would not be conducive either to good morals or to the law of the case for us to re-state or review in this opinion the evidence or the substance of it. The j udgment of the court below, therefore, must be reversed, and to the plaintiff will be given a divorce.and the custody of the child.
It has been made to appear to us by motion in this action, supported by affidavits, that some changes by execution sale and otherwise have been made in the property of the defend
The cause will, therefore, be remanded, with instructions to render a decree granting to the plaintiff a divorce and awarding to her the custody of the child, and the allowance of such alimony in. property or money as the court shall be advised.
Reversed.
Rehearing
ON REHEARING.
A rehearing in this cause was granted and it has again been submitted upon arguments in addition to those first filed. After proper consideration of all that has been said by counsel, and such examination of the questions as, in our judgment, they demand, we are united in the opinion that the conclusions reached by us upon the first argument, as above announced, are correct. As supplemental to that opinion we will proceed to state briefly certain propositions based upon the statutes which, we think, cannot be disputed.
II. Under the Code an action for a divorce and other relief that may be granted therein is a chancery action. Code, §§ 2511, 2742.
III. Chancery causes tried as-law actions upon oral evidence are reviewed upon errors in this court. But the manner of trial in the court below is left to the option of the parties, or rather either party may have the trial upon written evidence. Code, §2742. But divorce cases, which as we have seen are chancery actions, are excepted from this provision and cannot be so tried upon written evidence that they may
The statute is not objectionable on the ground that it requires a chancery cánse lo be tried on written evidence in order, to give the right of appeal. In this it is a regulation affecting the manner of appeal, the proceedings necessary to be taken prior to an appeal; it does not cut off the right of appeal. But so far as it is applicable to certain cases and provides that the right of appeal is taken away, it is' in conflict with the constitution.
The statute is not objectionable on the ground that it provides for the trial of chancery cases in the inferior courts upon oral evidence and in this court upon errors. It is not a provision that can be enforced without the consent of both parties, for either, in the manner pointed out, may secure to himself the right of a trial de novo in this court. The trial upon oral evidence in the court below and upon error here, may be regarded as with the consent of the parties. We have held that the trial of a chancery case without objection or with consent in the court below as a law action will entitle the parties to a trial in this court tipon errors. Corbin v. Woodbine, 33 Iowa, 297.
But the statute, in so far as it deprives parties to chancery actions of the right to trials in this court de novo, a right secured by the constitution, cannot be enforced. The exception found in §2742, which forbids parties to divorce and other chancery actions, claiming a trial upon written evidence, must, therefore, be regarded as of no effect.
IV. Counsel cite decisions of this court based upon the provisions of the Rev. of 1860, directing the manner of trial of equitable actions in this court, which were tried in the courts below according to the second method. Rev., § 2999. Such trials and the manner thereof differed in no respect from trials at law. Cases so tried -were reviewed here upon errors.
In conclusion we may remark that, upon a re-examination of the evidence and pleadings, as well as of the arguments of the attorneys of the parties, we are well satisfied with the conclusions heretofore reached in this case. The former opinion is adhered to and refiled.