Gilmore & Smith v. Ferguson & Cassell

28 Iowa 422

• Court: Supreme Court of Iowa
• Decided: January 12, 1869
• Status: Published

Opinion

Cole, Ch. J.

This cause was decided and opinion filed at the last Dubuque Tei*m. At this term, and before any judgment had been rendered, the appellants having given due notice to the opposite party, now appear and move the court to render judgment in their favor, upon the special verdict of the jury.

Upon the trial of the cause in the Distinct Court, the juiy, by consent of the parties, were required to make answers to certain questions in the nature of a special verdict, leaving the law aiising thereon to be determined by the court. The jury returned such answers as a special verdict, and thereon the District Court held the contract usurious, and rendered judgment accordingly. This court, upon appeal, held the contract not usurious, and thereby reversed the judgment of the District Court; and the question presented by this motion is, whether the plaintiffs are entitled to a judgment now in this court, or must the cause be remanded for a new trial \

It is provided by the Revision, section 3536: “ The Supreme Court may reverse or affirm the judgment or order below, or the part of either appealed from, or may render such judgment or order as the District Court or judge should have done, according as it may think proper.” Under this section, this court clearly has the power, the motion being made in proper time, to render such j udgment as the District Court should have rendered; and by the opinion heretofore filed it was shown that the District Court should have held the contract to be not usurious, and rendered judgment for plaintiffs for the amount due upon the contract, according to the special verdict. Such judgment will, therefore, be now rendered in this court. See Roberts, assignee, etc., v. Corbin & Co., ante, 354.

Motion granted.