Vance v. Kirfman

Cole, J. „ i?|™i “fe affidavit. 2,_mis-jury. It was held in Stone v. Murphy, 2 Iowa, 35, that the averments in an affidavit for a writ of error, amount to nothing, unless there is a response to the same in the return of the justice. This is a reason-rule, and js analogous to other judicial writs and proceedings. The affidavit lays the foundation for the issuance of the writ, and becomes the allegations of error on the part of the plaintiff therein, but cannot be regarded in any manner as evidence of the errors complained of. Rhodes v. De Bow, 5 Id., 260. The return and amended return of the justice, fail to show the truth of the alleged error, or any such illegal conduct on the part of the jury, as would justify the setting aside of the verdict. Barton v. Holmes, 16 Id., 252. The alleged error, then, is not sustained by the evidence in the cause, the justice’s returns, and aside from any question as to the right to a writ of error in such a state of case, as shown by plaintiff’s affidavit (which may well be doubted, certainly an appeal is a clear remedy), the judgment of the District Court must be Affirmed.