Cook v. Smith

• Decision Date: 10 June 1882
• Citation: 12 N.W. 617,58 Iowa 607
• Parties: COOK v. SMITH AND OTHERS.
• Court: Iowa Supreme Court

58 Iowa 607

12 N.W. 617

COOK

v.SMITH AND OTHERS.

Supreme Court of Iowa.

Filed June 10, 1882.

Appeal from Pottawattamie circuit court.

This proceeding was instituted by the defendants by filing a petition under Code, § 3155, for a new trial, on the ground of newly-discovered evidence. A new trial was granted, and plaintiff appeals.John H. Keatley and Scott & Hight, for appellant.

Sapp & Lyman, for appellee.

SEEVERS, C. J.

1. What we shall designate as the original cause was tried in the circuit court in March, 1879, and judgment rendered for the plaintiff. The petition for a new trial of such original cause was filed in the circuit court during the same month. In August thereafter an appeal was taken by the defendants from the judgment to the supreme court. Such appeal was heard, and the judgment of the circuit court affirmed. Cook v. Smith, 54 Iowa, 636; [S. C. 6 N. W. REP. 259.] After the final disposition of the appeal in the supreme court this proceeding for a new trial was brought on for hearing in the circuit court. But, while the appeal was pending, the plaintiff, by way of answer to the petition for a new trial, pleaded the pendency of the appeal in bar of this proceeding. To this a demurrer was sustained. In so ruling, it is insisted by appellant, the court erred, and that the appeal to the supreme court ousted the circuit court of jurisdiction, and the power to grant a new trial.

The statute provides, where the grounds for a new trial cannot, with reasonable diligence, be discovered before, and are discovered after, the term at which the trial was had, an application therefor may be made by petition filed not later than the second term after the discovery; but no petition shall be filed more than one year after final judgment is rendered. Code, § 3155.

When the petition for a new trial was filed the circuit court, without doubt, had jurisdiction and the power to grant a new trial upon the ground material evidence had been discovered since the trial. Did the subsequent appeal oust the circuit court of such jurisdiction? There is no statute which so provides. The right to apply for and the power of the court to entertain jurisdiction of the application during the time limited in the statute is absolute and unconditional. There is no such inconsistency between the two proceedings as to require the one to be abated because the other is pending. It may be both should not be actively prosecuted at the same time for determination;...