Twogood & Elliott v. Reily

48 Iowa 546 | Iowa | 1878

Rothrock, Ch. J.

1. practice denovo. It appears from the abstract that the cause was tried in the court below by an examination of the witnesses in open court. It does noj; appear any motion was made at any time for a trial upon written evidence, nor that any order was made for the testimony to be taken down in writing on the trial, and made part of the record. We have repeatedly held that in order to entitle an appellant to a trial anew in this court the provisions of section 2742 of the Code must be complied with. It seems that the cause was tried as law actions are, by embodying the evidence in a bill of exceptions. No errors have been assigned, and as the cause is not triable anew, there is nothing in the record which this court can examine. The statute is explicit. "We are precluded from trying any errors excepting such as are duly presented by assignment. Code, §§ 2741, 3183, 3207.

All equitable actions, of whatever character, are triable cle novo upon appeal to this court, provided the parties have complied with section 2742 of the Code. Sherwood v. Sherwood, 44 Iowa, 192. If tried in the court below in the same manner as law actions, upon appeal to this court we can only try the errors assigned. After the cause was fully submitted the appellant filed a certificate of the trial judge, made and dated April 26,1878, to the effect that the abstract contained all the evidence adduced on the trial. Aside from the fact that this certificate was made after the cause was submitted, it cannot avail the appellant. It nowhere appears affirmatively, or by implication, that any motion or order was made as required by Code, § 2742. These points are insisted upon by counsel for appellee, and we are not at liberty to disregard them.

Affirmed.