Stoddard v. Hardwick

46 Iowa 160 | Iowa | 1877

Rothrook, J.

i. pkactioein couilTtriai6 de novo. I. Counsel for appellees argue the case upon the theory that it is not triable anew in this court. The argument of counsel -for appellant is silent upon this question. We find, however, that the abstract purports to contain all the evidence and recites that the evidence was by order of the court taken down in writing and filed with the clerk and made á part of the record of the case. The cause is in the nature of an equitable, action, and we think a sufficient compliance with the provisions of section 2742 of the Code has been shown to entitle appellant to a trial de novo upon appeal.

II. As we view the case it presents questions of fact only. The material question is as to whether Hardwick was indebted to Dean upon the notes in controversy. Hardwick had, before suit was commenced, obtained possession of all the notes but one against which he held a receipt of payment in full. The burden of proof was upon appellant to show that notwithstanding this state of facts, Hardwick still was indebted to him upon the notes.

We have carefully examined the evidence upon this question and concur with the court below in holding that appellant fails to make a case entitling him to a judgment against Hardwick. Having thus found, it is an end of the case. If he is not entitled to anything as against Hardwick, it follows that he can have no claim against the land, or against the grantees of Hardwick. It is not necessary that we should set out and discuss the evidence. It is voluminous and a l’eview of it would serve no useful purpose.

Affirmed.