Bruce v. Galvin

• Decision Date: 18 March 1918
• Docket Number: No. 32088.,32088.
• Citation: 166 N.W. 787,183 Iowa 145
• Parties: BRUCE v. GALVIN.
• Court: Iowa Supreme Court

183 Iowa 145

166 N.W. 787

BRUCE

v.GALVIN.

No. 32088.

Supreme Court of Iowa.

March 18, 1918.

Appeal from District Court, Marion County; J. H. Applegate, Judge.

An action at law brought to recover damages on account of the alleged alienation of the affections of plaintiff's wife. The cause was originally tried to a jury which returned a verdict for the plaintiff, and from the judgment entered on the verdict defendant appealed. Upon hearing the appeal in this court the judgment below was reversed on the ground that the verdict of the jury was without sufficient support in the evidence. See 159 N. W. 586. Thereafter a procedendo was issued, and upon the filing thereof in the district court the plaintiff procured the reinstatement of the cause upon the trial calendar and noticed the same for trial. At this stage of the proceedings counsel for defendant entered a special appearance therein for the purpose of objecting to the jurisdiction of the court to take any further action in the case except to enter judgment against plaintiff for costs. The objection so made was based upon the ground that the cause had already been fully determined and adjudicated, and that the attempt on the part of plaintiff to retry the cause is inconsistent with the opinion rendered therein by the Supreme Court on appeal. On these grounds defendant moved the court to strike the cause from the calendar for want of jurisdiction, and to enter judgment against plaintiff for costs. The court denied the motion, and from this ruling the defendant appeals. Affirmed.W. H. Lyon, of Knoxville, for appellant.

Berry & Watson, of Indianola, and W. G. Vander Ploeg, of Knoxville, for appellee.

WEAVER, J.

[1] It is the theory of the appellant that this court having found and held upon the former appeal that the evidence produced on the trial was insufficient to justify a verdict in plaintiff's favor, the decision is to be considered a final adjudication of the issue joined, and that upon transmission of the procedendo the district court acquired no jurisdiction to proceed further in the cause than to render final judgment against plaintiff for the costs of the action.

Were the question an open one in this state, much might be said in favor of the rule for which counsel contend. We are committed, however, to the proposition that upon the reversal of a judgment on appeal of a law case because of insufficient evidence the cause goes back to the lower court for a retrial if either party demands it, unless it clearly appears from the record that under no conceivable state of proof applicable to the...