Adams County v. B. & M. R. R.

44 Iowa 335

• Court: Supreme Court of Iowa
• Decided: October 18, 1876
• Status: Published

Opinion

Adams, J.

i. pleading: equity?111 after remand, The question presented for our decision is whether, after a reversal in a suit in equity, which is remanded by this court for further proceedings not inconsistent with its opinion, the unsuccessful party can be allowed to file an amended or additional pleading upon such showing of newly discovered evidence as would entitle an applicant to a new trial in a suit at law. This question the District Court answered in the negative.

It is claimed by the appellee that the case, having been determined in this court, the court below had power only to enter a decree in accordance with the opinion of this court. The argument is that the allowance of an amendment on the ground of newly discovered evidence involves as a consequence a new trial, and that such can be. had, if at all, only after final decree, notwithstanding the evidence may have been discovered before such decree.

After the reversal of a suit in equity which is remanded for further proceedings not inconsistent with the opinion, it stands precisely as any suit in equity stands between the submission and the entry of the decree, the court being fully advised in the premises, and the decision announced as to what decree should be entered upon the pleadings and evidence as they then stand. If at that point of time the unsuccessful party asks leave to introduce new evidence omitted by inadvertence, or to file an additional or amended pleading, the court might, in its discretion; in view of the circumstances and in furtherance of substantial justice, grant leave to do so; but it could not be claimed as a matter of right. If, however, the unsuccessful party shows that evidence has been discovered since the submission which is material and not cumulative, and which could not have been sooner discovered in the exercise of reasonable diligence, being such as would entitle the party to a new trial after decree, we know of no good reason why the decree should be first entered before the evidence can be introduced. It follows that if the evidence may be introduced before decree, any amended or additional pleading which may become necessary by reason of the newly discovered facts should be allowed.

2.-: esatlon.1'tax The appellee contends that the motion to strike the amended replication from the files was properly sustained because the affidavits showing newly discovered evidence were not sworn to at the time they were-offered. This objection does not appear to have been made in the court below, and the refusal of the court to receive them was, we'think, not placed on that ground. The record: shows that the plaintiff offered to file affidavits showing the facts in question. The court refused to allow him to file affidavits. Certain statements had been written out and subscribed, which, when-sworn to, were to constitute the affidavits; but, as the court denied him the right to file affidavits, the fact that the statements were not sworn teat that time is not material, ¿specially as they were sworn to afterwards, and appear now in the record.

The appellee further contends'that the matters set up in the amended replication were already in issue, and were determined and adjudicated.

The defendant’s answer and cross-petition set up that the plaintiff was estopped from claiming title to the land as against defendant, because the plaintiff had received from the defendant payment of taxes on the land. This the plaintiff’s replication denied. . '

Under that issue, we do not think the plaintiff could properly have shown that the lands had been wrongly included in the tax list, and that plaintiff had received payment of taxes from defendant on the same by inadvertence and mistake. We think, therefore, the amendment did set up a new fact, which was proper to be shown.

Reversed.