Richards v. Hintrager

Seevers, Ch. J. i practice in comt'Tiiafde nbv°. I. It is apparent from tbe abstract that this cause was tried below upon oral testimony taken in open C011rt as contemplated in § 2741 of tbe Code. No was made, as provided in § 2742 of tbe Code, for a trial upon written evidence. Nor does it appear that tbe evidence was written down by the order or direction of tbe judge. Tbe abstract, however, purports to set out all tbe evidence, and at tbe conclusion thereof states: [254] “This being all the evidence, the court on the 14th day of August, 1875, rendered the decree.” The appellee insists that under these circumstances there cannot be a trial de novo in this court, and such was the ruling in Walker v. Plummer, 41 Iowa, 697, which has been followed in several other cases since that decision. It is insisted by appellant that inasmuch as a trial de novo in equity causes is guaranteed by the Constitution, any statute which destroys or takes away such right is unconstitutional. In so claiming the appellant is undoubtedly sustained by Sherwood v. Sherwood, 44 Iowa, 192. 2. —;-: constitutional law. But the right of appeal and trial anew is not taken away or destroyed, nor does the statute in any manner impair such right. While it is not competent to take away , the right ox trial de novo by statute, yet such right may be thereby regulated. A party may be entirely willing to submit his cause to a court before whom the witnesses are examined orally upon a certain amount of testimony, but would be unwilling to so submit it if he knew there was to be a trial de novo in this court. Hence the necessity of the motion, or some other action in the court below equivalent thereto. The theory of the statute is that the parties shall be advised at the appearance term whether a trial de novo will be insisted on in this court, in case there is an appeal, so they may prepare their testimony accordingly. II. The evidence was not preserved by bill of exceptions, nor was there any finding of facts, motion for a new trial, or exception taken to the judgment, or any other ruling of the court helow. Error, however, is assigned that “under the pleadings and evidence the plaintiffs were not entitled to the relief prayed for and given by the decree.” The appellee insists that such a record, presents no question this court can try and determine. As there can be no trial anew the defendant has the right to have any errors of law committed by the District Court which were duly excepted to and assigned as error determined. But the difficulty is, no exceptions were taken, and therefore [255] there is nothing we can consider. This has been ruled so often, and is so well understood, that a citation of authorities is unnecessary. Besides this, under the assignment of error nothing can be considered by us unless the cause has been placed in such a position as to enable us to review the finding and decision of the court on the facts as well as the law. Dean v. White, 5 Iowa, 266. The judgment of the District Court is therefore Affirmed.