Dryden v. Wallis

5 N.W. 518, 53 Iowa 390

Opinion

Seevers, J.

i practiceyfisaifuew trial. When this cause was here before, 51 Iowa, 531, we held that, as there was no evidence tending to show there was a valid defense to the original action, a new trial therein was improperly granted in this proceeding. The effect of this ruling was to set aside the judgment below, and no action to this effect was required in that court.

It was, however, the duty of the District Court to proceed, try, and determine the issues joined in the petition for a new trial, as if no appeal had been taken. All that this court held in the former appeal was that-the evidence was not sufficient to sustain the judgment, but it was not held that the plaintiff could not introduce more evidence, and thus establish the fact that he was entitled to a new trial. Roberts v. Corbin, 28 Iowa, 355, cited by the appellant, is not applicable, because there was no finding of facts in the case at bar.

The view we have adopted renders it unnecessary to determine the motion, or whether the order or judgment is one from which an appeal lies.

Affirmed..