Kennedy v. Gauli

44 Iowa 547

• Court: Supreme Court of Iowa
• Decided: October 23, 1876
• Status: Published

Opinion

Adams, J.

i..mechanic’s in'tiie1^-106 preme Court: trial. I. A question is raised in this case as to whether it is triable de novo. An action to enforce a mechanic’s lien is to be prosecuted by equitable proceedings. Code, section 2510. Either party had . , , ,. . , . 1 . , a right to move for a trial on written evidence. Sherwood v. Sherwood, ante, p. 192. Neither party, however, did so move, nor was any order made that the testimony be reduced to writing. We think that the case is not triable de novo. Walker v. Plummer, 41 Iowa, 677; Hammersham v. Fairall, ante, p. 462.

II. The structure is evidently defective. Whether the defects are attributable to the unskillfulness of the plaintiff, or to circumstances which he could not control, the evidence does not clearly show. On this point there is conflict. We are of the opinion, therefore, that the decree of the Circuit Court must be

Affirmed.