Cross v. The B. & S.W. R. Co.
| Decision Date | 08 October 1879 |
| Citation | 2 N.W. 586,51 Iowa 683 |
| Parties | CROSS v. THE B. & S.W. R. CO. ET AL |
| Court | Iowa Supreme Court |
Appeal from Van Buren Circuit Court.
ACTION in equity. The petition states that the plaintiff was the owner of an interest in certain described real estate, and also certain grades, embankments, earth-works and other improvements in the nature of a road-bed and right of way for a railroad situated in Van Buren county, Iowa and used by the Burlington & Southwestern Railway Company for its road; that he "sold his interest in said lands to defendant Burlington & Southwestern Railway Company for the sum of one thousand three hundred dollars, for which said company gave their notes for eight hundred dollars, and paid the balance five hundred dollars, in cash;" that said eight hundred dollars are still unpaid, as will appear by copies of notes annexed as exhibits "A" and "B;" that said company, in pursuance of said sale, took possession of said premises, and constructed its road thereon, and now occupies the same, and that E. B. Ward leased the road and agreed to pay its debts.
John W Brooks and Alpheus Hardy, by an amendment to the petition were made defendants, and it was stated they claimed to be lien holders, but that whatever lien they may have is junior to that of plaintiff. The relief asked was that a vendor's lien be established on said premises for the amount due on said notes. The railway company in its answer denied plaintiff was entitled to a vendor's lien, and denied he had any lien, title or interest in the lands described in the petition, or that any portion of the same was sold by plaintiff to said company; alleges that whatever interest said company obtained to said lands it acquired by purchase of or consolidation with the Iowa & Missouri State Line Railway Company, and in consideration thereof assumed to pay certain liabilities of said State Line Company, in which the plaintiff was a stockholder.
Brooks and Hardy insisted in their answer they were entitled to the prior lien by reason of the execution to them of a deed of trust or mortgage.
The reply denied the allegations of the answers, and alleged the said trust deed had been declared void by a court of competent jurisdiction. Judgment was rendered against the railway company for the amount due on the notes in 1874, and the issue as to the vendor's lien was continued from term to term until October, 1877, when a decree in substantial accord with the relief asked was granted. The defendants appeal.
REVERSED.
P. Henry Smyth, for appellants.
D. C. Beaman, for appellee.
I.
It is objected by the appellee that there cannot be a trial de novo, because no motion was made below for a trial on written evidence, nor did the court order there should be such a trial. In this we concur. There was no objection made to the introduction of evidence, and the only exception taken was to the decree. In substance it is assigned as error that there was no evidence warranting the establishment of a vendor's lien. The appellee objects that an equity cause cannot be heard in this court on error, but must be tried de novo, or not at all. In support of this, article 5, § 4 of the Constitution, and Sherwood v. Sherwood, 44 Iowa 192, are cited.
If an action has been tried below as prescribed by statute for the trial of equitable actions, then both parties have a constitutional right to a trial de novo in this court. It is, however, competent for the General Assembly to prescribe and regulate the manner causes shall be tried. Richards v. Hintrager, 45 Iowa 253.
As this cause was not tried below in such manner as to entitle either party to a trial anew here, the appellant has the right to be heard on exceptions and errors duly assigned; for certain it is, if the trial in the Circuit Court was not in accord with the manner prescribed by statute for the trial of equitable actions, that the trial must have been at law. Grant v. Crow, 47 Iowa 632.
II. It is objected by the appellee that all the evidence is not before us; that there was no finding of facts, and all the pleadings are not in the abstract. It is said that copies of the notes annexed to and made a part of the petition are not in the abstract. Judgment had been...
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