Tasker v. Marshall

4 Iowa 544 | Iowa | 1857

Weight, C. J.

-The appellant in his argument, as originally submitted in writing, seeks to reverse the judgment below, alone upon the ground that the entire consideration money for the real estate sold by respondent, remains unpaid. It would seem that counsel for appellee submitted his argument, also in writing, without having seen that of appellant, for throughout he assumes such payment as a matter about which there was no controversy, and makes no response to the only point in defendant’s brief. It being thus manifest to the court, that for some cause, one, if not both parties were laboring under a mistake as to what was contained in the record, we called their attention to the same, and this led to the filing of the affidavits referred to in the statement of the ease. Several of these have been filed on each side. The point in controversy is, whether certain receipts or evidences of the payment of the judgments recovered for the consideration money, were introduced on the hearing of this case in the court below. The affiants appear to be quite clear and positive on each side of this question. To determine the case as it now stands, it appears to us might be at the great hazard of doing injustice to these parties. Erorn the affidavits before us, we are at a great loss to determine whether said proof was in fact made. And yet there are many very strong circumstances, as well as. positive statements, in favor of the position that said proof was made. If made, the receipts are lost by some means, not attributable to either party perhaps, and certainly not to complainant. Under such circumstances, we think it safer, and more likely to arrive at the truth in the premises, to remand the case, with instructions to ascertain and embody in a proper bill of exceptions or otherwise, the evidence upon this subject on the former trial, but for no other purpose. After they are thus heard, either party can bring the case to this court for final adjudication.

Acting upon the rule recognized in Coffin v. Hammond, 3 G. Greene, 241, we would entertain no doubt of our right to determine the case upon the record and affidavits before us. We are equally clear, that in the exercise of a sound discretion, it is entirely competent to remand the case for the purpose above indicated. It will, accordingly, be so remanded.