Cross v. B. & S. W. R. Co.

2 N.W. 586, 51 Iowa 683

• Court: Supreme Court of Iowa
• Decided: October 8, 1879
• Status: Published

Opinion

Seevers, J.

i practice in cou?"PS® ae U0T0- — I. It is objected by the appellee that there cannot be a trial de novo, because no motion was made below for a trial on written evidence, nor did the court order there should be such a trial. In this we concur. There was no objection made to the introduction of evidence, and the only exception taken was to the decree. In substance it is assigned as error that there was no evidence warranting the establishment of a vendor’s lien. The appellee objects that an equity cause cannot be heard in this court on error, but must be tried de novo, or not at all. In support of this, article 5, § 4 of the Constitution, and Sherwood v. Sherwood, 44 Iowa, 192, are cited.

If an action has been tried below as prescribed by statute for the trial of equitable actions, then both parties have a constitutional right to a trial ele novo in this court. It is, however, competent for the General Assembly to prescribe and regulate the manner causes shall be tried. Richards v. Hintrager, 45 Iowa, 253.

As this cause was not tried below in such manner as to entitle either party to a trial anew here, the appellant has the right tobe heard on exceptions and errors duly assigned; for certain it is, if the trial in the Circuit Court was not in accord with the manner prescribed by statute for the trial of equitable actions, that the trial must have been at law. Grant v. Crow, 47 Iowa, 632.

2_. amena_ ed abstract. II. It is objected by the appellee that all the evidence is not before us; that there was no finding of facts, and all the pleadings are not in the abstract. It is said that copies of the notes annexed to and made a part of the petition are not in the abstract. Judgment had been rendered on the notes more than three years preceding the hearing below, and no appeal taken therefrom. The only contest was as to whether the judgment so rendered should be established as a vendor’s lien against the railway company, and given priority to the lien claimed by Brooks and Hardy. These questions could not possibly be affected by the provisions of the notes. It is not even claimed such would be the case. It, therefore, affirmatively appears the omission could not have any bearing on the question to be determined. But as to this, and the point that all the evidence is not in the abstract, we have to say that an amended abstract has been filed which purports to contain certain omitted evidence, and the result of certain other evidence. For instance, the abstract states that a printed pamphlet, purporting to contain the record of a certain suit and decree therein, rendered in the District Court of Davis county, in which suit E. B. Ward was plaintiff and the railway company was defendant, is omitted, as being immaterial as to the questions to be determined on this appeal.

The amended abstract states in substance that said pamphlet contained ninety-six pages, and the same was annexed to and made a part of the reply; that said exhibit showed the “mortgage Brooks and Hardy were seeking to maintain was declared null and void against the prior indebtedness of the railway company, among which was the debt of the plaintiff. ” It is perfectly clear from the reply that the omitted exhibit had no bearing whatever on the issue between the railway company and the plaintiff. If the. latter is not entitled to a vendor’s lien against the former, the issue as to Brooks and Hardy is immaterial.

It is further insisted only a portion of defendant’s articles of incorporation are contained in the abstract, which were admitted in evidence. The abstract states that all the evidence is contained therein. The amended abstract denies the correctness of the abstract in certain particulars, and as to these additional evidence is set out without claiming that with such additions the abstracts, taken together, are not full and complete. The objections, therefore, made in argument as to the completeness of the abstract are unavailing. Starr v. Burlington, 45 Iowa, 87.

It is not deemed necessary to determine on this appeal the issue between the plaintiff and Brooks and Hardy. No issue was found as to Ward, nor was any judgment rendered for or against him.

III. The remaining question is as to whether there was any evidence tending to sustain the allegations of the petition upon which the plaintiff’s right to a vendor’s lien is based. It is therein stated the plaintiff “sold his interest in the said lands to defendant Burlington & Southwestern Railway Company.” The evidence utterly fails to sustain this allegation. The plaintiff testified that he was a “stockholder in the Iowa & Missouri State Line Railroad Company, -which company owned the right of way across these lands; they had partially constructed a road-bed and earth-works for a railroad thereon; I sold my interest in the land to the Iowa & Missouri State Line Railroad Company, of which I was a director.” So far from establishing a sale by the plaintiff to the defendant company the evidence conclusively shows no such sale was made. The Circuit Court seems to have proceeded on the theory that the State Line Company made the sale to the defendant company, and would, therefore, be entitled to a lien, and that such lien would pass to the plaintiff as ah “incident of the debt,” as payment was to be made to the plaintiff. The difficulty here is that no such claim is made in the petition, a fact which we presume was overlooked by the learned judge of the Circuit Court. Whether the State Line Company would have been, or the plaintiff is, entitled to a lien we do not determine ; such questions, under the pleadings, not being in the case.

The cause will be remanded to the Circuit Court with directions to permit the parties to replead and take additional evidence if they are so advised.

> Reversed.