Dryden v. Wyllis

• Decision Date: 21 April 1880
• Citation: 5 N.W. 518,53 Iowa 390
• Parties: DRYDEN v. WYLLIS AND ANOTHER.
• Court: Iowa Supreme Court

53 Iowa 390

5 N.W. 518

DRYDEN

v.WYLLIS AND ANOTHER.

Supreme Court of Iowa.

Filed April 21, 1880.

Appeal from Marshall district court.

The defendant Wyllis recovered a judgment against the plaintiff. The latter filed a petition asking for a new trial. Issue was joined, and the relief asked was granted. From this judgment the defendant appealed. The judgment was reversed. Upon filing the procedendo and opinion of this court in the court below, the defendants moved for judgment in their favor in accordance with the procedendo and opinion of the supreme court. This was overruled, and the defendants appeal.J. C. Wyllis and P. M. Sutton, for appellants.

Caswell & Meeker, for appellee.

SEEVERS, J.

When this cause was here before, (1 N. W. REP. 703,) we held that as there was no evidence tending to show there was a valid defence to the original action that a new trial therein was improperly granted in this proceeding. The effect of this ruling was to set aside the judgment below, and no action to this effect was required in that court. It was, however, the duty of the district court to proceed, try and determine the issues joined in the petition for a new trial as if no appeal had been taken. All that this court held in the former appeal was that the evidence was not sufficient to sustain the judgment; but it was not held that the plaintiff could not introduce more evidence, and thus establish the fact that he was entitled to a new trial. Roberts v. Corbin, 28 Iowa, 355, cited by the appellant, is not applicable because there was no finding of facts in the case at bar.

The view we have adopted renders it unnecessary to determine the motion, or whether the order or judgment is one from which an appeal lies.

Affirmed.