Coombs v. Quinn

Adams, J. I. The plaintiff contends that after the motion was sustained, as above set out, the report should have been referred back to the commissioner. But there does not appear to have been anything more for the commissioner to do. He liad taken evidence, and made a survey and a plat, and showed by the plat where he thought the corner should be located, and where it had been previously located by Eockwell. The report seems to have been accepted by the court, except as to the commissioner’s conclusion. While the motion was to set it aside, and the record states that the motion was sustained, yet, taking the whole record together, it shows clearly that only the finding was set aside, and a different finding made; and the judgment of the court, it appears, is and was, when properly considered, amere modification of the report. Where objections are made to a commissioner’s report, the statute provides that “the court shall hear and determine the objections, and enter an order or judgment either approving or rejecting the report, or modifying or amending the same.” In making a different finding based upon the report, we think that the court was strictly within the statute. [471] II. Tbe plaintiff contends that lie was entitled to a trial by jury, but we field in Gates v. Brooks, 59 Iowa, 510, that the statute does not contemplate a trial hy jury, and that the statute is not unconstitutional. III. The plaintiff contends that the finding of the court is not sustained hy the evidence, but we think that there was some evidence tending to sustain the finding, and we cannot disturb it. It has the force of a verdict of a jury. Aeeirmed.