Hobart v. Hobart

• Decision Date: 14 June 1879
• Citation: 1 N.W. 780,51 Iowa 512
• Parties: SARA A. HOBART, APPELLEE, v. CHARLES W. HOBART, APPELLANT.
• Court: Iowa Supreme Court

51 Iowa 512

1 N.W. 780

SARA A. HOBART, APPELLEE,

v.CHARLES W. HOBART, APPELLANT.

Supreme Court of Iowa.

Filed June 14, 1879.

Appeal from Johnson district court.

This is an action for divorce, commenced on the ninth day of April, 1875. Upon motion of plaintiff the cause was referred. The referee filed a report in favor of plaintiff, which was by the court confirmed, and a decree was entered granting a divorce, as prayed. Upon appeal to this court the decree was reversed, because of error in ordering a reference of the case. See 45 Iowa, 501. The cause being remanded came on again for trial on the thirteenth day of June, 1878, and, by order of the court, a jury was called and impaneled for the trial of said cause. The defendant objected, because the law requires divorce cases to be tried by the judge of the court. The objection was overruled, and the defendant excepted. The jury found the issues in the case in favor of plaintiff. The court, thereupon, granted a decree of divorce, as prayed. The defendant appeals.Remley & Swisher, for appellant.

Boal & Jackson, for appellee.

DAY, J.

--Among numerous objections urged to the decree, it is insisted that the court had no authority to submit the issues of fact arising in the case to a jury. It is conceded that, under the old chancery practice, the chancellor might, to inform his conscience, submit any issues of fact to a jury. The propriety of such a course was recognized by this court in McDaniel v. Marygold, 2 Iowa, 499, and has been impliedly sanctioned in other cases. Section 2999 of the Revision provided by express declaration for such a proceeding. This section provides two methods of trying equitable issues, and declares: “In a trial by the first method the issues shall be tried by the court, who may, however, to inform his conscience, order the whole issues, or any part thereof, or any specific question of fact involved therein, to be tried by a jury, or may refer the same, and may, in either case, accept or reject the finding of the jury or referee, and may, with or without a statement of any finding of facts, render such judgment as he considers equitable.” Section 2998 of the Revision provides: “Issues of law must be tried by the court, unless referred, as provided in sec. 3089. An issue of fact in an action by ordinary proceedings must be tried by a jury, unless a jury trial shall be waived, as provided in sec. 3087, or a reference be ordered, as provided in sec. 3090.”

Section 2740 of the Code of 1873, which is a substitute for § 2998 of the Revision, is as follows: “Issues of fact, in an action in an ordinary proceeding, must be tried by jury, unless the same is waived. All other issues shall be tried by the court, unless a reference thereof is made.” Sections 2741 and 2742 of the Code, which are substituted for § 2999 of the Revision, do not contain the provision respecting the submission of a question of fact to a jury, to inform the conscience of the court. This omission is very significant, and sufficient of itself to raise a strong presumption of an intention to change the practice in such cases. But in addition to this omission, § 2740 of the Code affirmatively provides for the manner in...