Caldwell v. Nash

Seevers, J. — I. When the cause came on to be heard, the court, on its own motion, struck out what is designated as the ex parte affidavit of L. M. Swan, and upon the remaining evidence confirmed the report. It is insisted that, when the court struck out the affidavit, it was bound to refer the case back to the commissioner, no matter if the affidavit was immaterial or irrelevant, or if the remaining evidence conclusively established the correctness of the report. The statute provides that the “ court shall hear and determime the objection, and enter an order or judgment either approving or [659] rejecting the report, or modifying or amending the same.” Miller’s Code, 81. The court, therefore, had the power to do what it did. Substantially this same question was presented, and determined adversely to appellant, in Coombs v. Quinn, 66 Iowa, 469; and so, also, was the question as to the right of trial by jury. The evidence sustains the judgment of the district court, and it must be Affirmed.