54 Iowa 645 | Iowa | 1880
The plaintiff insists that the counter claim was not properly pleaded in this case, as the cause of action was exclusively cognizable in equity, and can be reviewed here only upon errors as an action at law. No objection upon this
The defendants maintain that the cause, including the counter-claim, is triable in this court de novo as an action in equity. This position is correct.
II. The testimony is before us upon a certificate of the judge trying the case, to the effect- that it constitutes all the evidence introduced upon the trial in the court below. The certificate does not show that the record contains all the evidence offered upon the trial, in accord with the requirements of the statute. See Miller’s Code, § 2742; Acts Seventeenth General Assembly, chapter 145. This provision requires that all the evidence offered at the trial of an equitable action be taken down in writing, and that evidence so taken shall be certified to this court. The reason and necessity for this pi’ovision will be understood by considering that trials of equitable cases are had here de novo, and that we pass upon the competency of the evidence. Without the provision the court below would determine all questions pertaining to the competency of evidence, and we could decide it only upon the evidence admitted in the court below. We could not correct the error should evidenbe be improperly rejected. The certificate in this case shows that the record contains all the evidence admitted but not all the evidence offered. It shows that the evidence admitted is preserved and nothing more: we cannot presume that no evidence was- offered and rejected The case is, therefore, not in a condition to be tried here.
Affirmed