Kershman v. Swehla

Beck, J. I. Upon a former appeal by defendant in this case, the judgment of the circuit court was reversed, and the cause was thereupon remanded to the court below. See 59 Iowa, 93. Upon the filing of a proeedendo in the circuit court, the defendant moved that a decree be entered in his favor. The motion was overruled, and from this decision defendant appeals. II. Upon the former appeal the decree, which was against defendant, was reversed, on the ground that the circuit court erred in overruling a motion to suppress certain depositions. This decision was to the effect that the depositions were taken without authority of law, and, for that reason, were not competent to be read in evidence. Of course, as the depositions were not admissible as evidence in the circuit court, they were not competent evidence in this court. The evidence embodied in them was not considered. The cause was not tried de novo on its merits, but was remanded for further proceedings in the court below. The reason that it was not tried here on its merits was that the evidence for the plaintiff was not in a form to be lawfully admitted. As the cause was not triable de novo, it was competent for the court to review it upon errors assigned. Cross v. The B. & S. W. R’y Co., 51 Iowa, 683. Upon discovering that errors had been committed, by reason of which the cause could not be tried upon its merits, it was the duty of this court to remand the cause to the end that the decision of the court below should be cor rected. It was neither proper to dismiss plaintiff’s action, nor to render a decree for defendant. In case either had been done, justice would have been defeated by a decision [656] without a trial in which the real merits of the controversy were brought before the court for decision For the same reason, when the cause was remanded, the court below could neither dismiss it nor render a decree for defendant, but was required, to try it anew, correcting the errors pointed out in the decision of this court. Jordan v. Winser & Snyder, 48 Iowa, 180; Sweet, Ex'r., v. Brown et al., 61 Id., 669. The circuit court rightly overruled defendant’s motion for a decree in his favor. III. The plaintiff ashed for time to file affidavits to show that no appeal had been taken in the case, etc. This application was refused, and the cause was continued and set down for trial upon deposition. As plaintiff did not appeal, and defendant does not complain of these rulings, we cannot review them. It may be remarked that, as the cause was continued, plaintiff had what he asked for — time to file affidavits. And the court, in setting the cause down for trial on depositions, acted under authority of the statute. Code, § 2742. The decision of the circuit court is Affirmed.