45 Iowa 154 | Iowa | 1876
This, however, is not an equitable action, and was not so regarded at the time the Constitution was adopted. 1 Story’s Eq. Jur., § § 184, 218; Leighton v. Orr, 44 Iowa, 679.
There are but two kind of issues, one of law and the other of fact, whether' the action be ordinary, equitable, or in the nature of a special proceeding. Code,„§ 2737.
The Code does not provide or define how the issues in a special proceeding shall be tried in the Circuit or District Courts. But it does provide how issues of fact in ordinary and equitable actions shall be tried in such courts, and the general rule is that in both classes of actions the trial shall be upon oral evidence taken in open court, and that upon appeal to this court only the legal errors duly assigned can be heard and determined. Code, § § 2740, 2741.
There being no special provision for the trial of issues of fact in the class of actions denominated special proceedings, it follows that such issues must be tried in the Circuit .and District Courts as an ordinary or equitable proceeding; and the mode of trial will be determined by assigning the proceeding
The general rule being that all actions and proceedings of every character can only be heard or tried in this court upon “legal errors duly presented,” it becomes necessary to ascertain whether there are any exceptions thereto, and here we have no difficulty.
Section 2742 of the Code, in connection with the constitutional provision, provides for the trial of equitable actions de novo in this court, and this constitutes the only exception to the general rule.
This view is not in conflict with Code, § 3170. This section secures a review in this court in an ordinary proceeding tried to the court, when no finding of facts has been made, in all cases when the evidence has been properly certified up to this court. But it does not obviate the necessity of an assignment of errors, one of which may be that the finding of the court is against the weight of the evidence. ’ Such an assignment of error would be considered and determined by us. The rules governing the court in such cases will be presently considered.
In equitable actions triable de novo in this court, no assignment of errors is required, and we consider the testimony, and determine the questions of fact presented, as in our judgment the proof preponderates, without giving any weight whatever to the finding and judgment of the court below.
The question we have been considering has not, we believe, been expressly decided by this court; certainly it was not in Williams v. Williams, 36 Iowa, 693, or in Johnson v. Semple, 31 Iowa, 49; it was held in both of these cases that viewing the actions as at law, and giving to the findings all the presumptions incident thereto, the evidence was not sufficient, and the findings were set aside.
The contestants testified as to their relationship to the deceased, and to facts tending to so prove, and nothing more. This does not authorize or permit one of the proponents to testify to the matters proposed to be proved by him. He is clearly within the prohibition, and his standing or that of the case is not such as to bring him within the exceptions of Code, § 3639. Canaday v. Johnson, 40 Iowa, 587.
IY. The remaining errors assigned amount to this, that the finding of tlie Circuit Court in refusing to probate the will is against the weight of evidence.
Although we might conclude as an original question that the weight of the evidence was against the finding, still we cannot interfere; sirch was the ruling in a similar case in Havelick v. Havelick, 18 Iowa, 414, where it is said: “Was the verdict against the evidence? Not so clearly so as to warrant a reversal.' There was a mass of testimony, some of it conflicting, upon a subject very difficult to determine. That the jury might not have reached fairly and consistently the opposite conclusion, may be admitted. But the most that can well be claimed is that the case upon the testimony is one of doubt, and the verdict cannot therefore be disturbed.” What was said in that case is applicable to this; the issues are the same.
The evidence was conflicting, and the witnesses were examined orally in the Circuit Court. Therefore the demeanor of the witnesses while testifying had an important bearing in. determining their credibility.
Affirmed.