Berry v. Kritenbrink

Salinger, J. [1122] 1. Appeal and error : grounds for review: points first raised on appeal. [1121] I. In various ways, it is urged upon us that the petition states no cause of action, and for that reason the court erred in entering judgment and decree for [1122] plaintiff. No such question was raised in the trial court at any time, and we will not indulge in citations for the holding that appellants are not now in position to raise that point in this court. 2. appeal and for 0reViCT?“nas first complaint as to unobjected evidence on appeal. II. There is some complaint that parol testimony was allowed, to enlarge the writings put in evidence. Be that as it may, testimony of this character was received without objection, and its reception may not here be complained of for the first time. See Zabel v. Nyenhuis, 83 Iowa 756, at 759. III. The appeal finally resolves itself into passing upon a question of fact concerning which there w'as a substantial conflict in the evidencé. The question of fact is whether Berry waived what interest he may have had in certain lands. Appellant urges that the court erred in finding that Berry, appellee, did not waive his rights to the land in controversy, because plaintiff, on the 24th of February, 1915, did waive and abandon any interest he might have in Exhibit A, or any of the deals described in the evidence. As to whether or not he waived these rights or released them, the testimony is in sharp conflict. We allow something for the advantage the trial court had in seeing and hearing the witnesses. With that to start with, our reading of the record satisfies us there is no substantial reason for disagreeing with the conclusions of fact reached below. See Wilkie v. Sassen, 123 Iowa 421, and Pryne v. Pryne, 116 Iowa 82, 83. We think the relief granted is fairly within the petition; at least, within its prayer for general, equitable relief. See Searle v. Fairbanks, Morse & Co., 80 Iowa 307, 311; Hoskins v. Rowe, 61 Iowa 180; and Iler v. Griswold, 83 Iowa 442. It is a serious question whether those who have appealed have not lost all interest in the controversy, and whether they • are entitled to maintain this appeal. See Price v. Baldauf, [1123] 90 Iowa 205, 209; Faucher v. Grass, 60 Iowa 506; Moller v. Gottsch, 107 Iowa 238. But, in view of the conclusions already announced, we find it unnecessary to determine that question. Our conclusion works an affirmance. — Affirmed. Ladd, C. J., Evans and Preston, JJ., concur.