Trescott v. Barnes

46 Iowa 644 | Iowa | 1877

Rothrock, J.

l. practice: tnai de novo. I. An opinion was filed at .the October Term, 1876, at Davenport, reversing the decree and judgment *n this case- Within the proper time a petition for rehearing was filed. A reply was ordered which has been filed, and the cause has again been submitted.

Upon considering the arguments upon rehearing in connection with other cases determined since filing the former opinion, we have arrived at a different conclusion from that first announced. We do not think the cause is triable anew in this court for the following reasons:

The record contains no motion for a trial upon written evidence. No order was made at any time before the trial that the evidence be taken in writing. The trial was had on the 19th day of May, 1875, and the decree was entered two days afterward. On the 23d day of September, 1875, the defendants filed a motion for an order to be entered as of the May term, 1875, showing that in open court, before the trial of the cause, the defendants orally moved the court and requested that all the evidence offered on the trial be taken down in writing, which was accordingly ordered and done. This motion was sustained and a nunc pro tuna order entered reciting that such oral request was made, and that all the evidence was taken down in writing as ordered by the court.

This, we think,, does not show a compliance with Sec. 2742 ' of the Code. That section requires that a motion be made at the appearance term.

A motion is a written application for an order addressed to the court. Code, Sec. 2911.

The oral request, and taking down the evidence in pursur anee thereof, was no more than a compliance with Sec. 181 of the Code, which provides for recording the oral testimony of witnesses by the short hand reporter upon request of either of the parties to the action.

No such motion or order having been made before the trial, as the law contemplates, the omission cannot be supplied at a subsequent term in order to give the appellants a standing in this court which they would not otherwise have.

II. There is no assignment of errors. The main question is whether the decree is warranted by the evidence. If we had a proper assignment of errors to raise this question, we could not reverse the decree and judgment. There is a strong conflict in the evidence, and we cannot say that the decree and judgment were the result of passion or prejudice. •

Affirmed.