50 Iowa 110 | Iowa | 1878
The plaintiff asks for a trial ele novo in this court, which is resisted by defendant.
If the question thus raised is to be determined under Code, § 2742, the case, for the failure to comply with its provisions, cannot be tried here de novo. But plaintiff insists that the statute named is not applicable, for the reason that it is repealed by Acts Seventeenth General Assembly, chapter 145, which restore the practice existing before the enactment of the repealed provision. We are required to determine the •correctness of this position.
The repealing act took effect July 4,1878 (Code, § 84), after the trial and before the appeal was perfected. It is not, by its terms, made apqdicable to cases before tried. Code, § 45, par. 1, provides that “the repeal of a statute does not revive a statute previously repealed, nor affect any right which has accrued, any duty imposed, any penalty incurred, or any proceeding commenced, under or by virtue of the statute repealed.” It does not require discussion to show that under this provision the proceedings in the ease upon appeal must conform to the statute in force when the action was prosecuted in the court below, Rivers v. Cole, 38 Iowa, 677.
The rule we adopt under these statutes operates most justly in its application to cases of this character. The parties, unless notified by the order requiring the case to be tried upon depositions or the evidence to be taken in writing at the trial, would not be advised that a trial de novo would be claimed or could be granted in this court. They would not, therefore,
Counsel for plaintiff insist, citing Tilton v. Swift, 40 Iowa, 78, that as the rule of Code, § 2742, pertains to the remedy and to the practice of themourt, it may be changed by statute and a different rule applied to pending cases. Doubtless the-Legislature may so enact, but nothing of the kind has been attempted which is applicable to this case. On the contrary, Code, § 45, par. 1, which is not affected by the act repealing Code, § 2742, requires the rule of the last named section to be applied to proceedings commenced under it.
The record before us does not present the case in a condition, to be tried upon errors. Indeed, the plaintiff does not ask such a trial. We can do nothing but affirm the judgment of the court below.
Affirmed.