OPINION
MORLING, J.
This is
a suit in equity. At the trial from the result of which the
former appeal was taken, plaintiff offered evidence; but when
he rested, defendants offered no evidence upon the merits of
plaintiff's allegations. Their evidence was confined to a
special defense of res adjudicata. After offering
such evidence, they made motion to dismiss, which the trial
court sustained. The case in this court was therefore
triable, and was tried, de novo.
In the
opinion it is said that the property in controversy was
conveyed to both Quaintances; that plaintiff "seeks
judgment against Quaintance and his wife for $ 1,543.47, and
asks that said judgment be established as a prior and
superior lien * * * Evidence was then introduced on the part
of the plaintiff, tending to show that the work done and
material furnished were the basis of his mechanic's lien.
At this point the plaintiff rests. The defendants then
introduced the record * * * in the original foreclosure case
* * * Whereupon, Quaintance moved the court to dismiss the
plaintiff's petition, for the reason that the matters
involved therein had been entirely adjudicated * * * and for
the further reason that this action was improvidently brought
* * * The foregoing disposes of all rights of all the
contending parties herein except the Quaintances. Briefly
summarized, their situation in this case is this: While they
deny that the contract between them and Matthews for the
cement work was as he pleaded, they concede that the work was
done, and claim that, after its completion, a dispute arose
as to whether the work was in accordance with the contract,
and that, to adjust the dispute, they executed the two notes
amounting to $ 1,100, to which reference is hereinbefore
made. These notes were not signed by Mrs. Quaintance.
Following that, Matthews filed his mechanic's lien. The
form thereof is not questioned, and the Quaintances first
plead that the same was not filed, and that an action to
foreclose the same was not brought within the statutory time.
A comparison of dates, however, eliminates this question from
the case. * * * In the case at bar, as between Matthews and
the Quaintances, no issue was adjudicated in
the final decree in that foreclosure case. In the case at
bar, as between Matthews and the Quaintances, it is the
ordinary action to foreclose a mechanic's lien. The
Quaintances deny the contract on which Matthews based his
lien, deny that the work was done in a workmanlike manner,
and attempt to plead an accord and satisfaction by the
execution of the aforesaid promissory notes for $ 1,100 and
claim that Matthews is not entitled to a foreclosure of the
mechanic's lien. Plaintiff introduced testimony tending
to support the correctness of his contract and the validity
of his lien. The Quaintances introduced no testimony. With
this situation in the case, we are unable to understand why
the Quaintances were entitled to a dismissal of
plaintiff's case against them. * * * It must follow,
therefore, that the ruling of the court on this matter, as
between the Quaintances and Matthews, dismissing
Matthews' petition, was erroneous, and is reversed."
As has
been stated, the Quaintances together owned the property.
There was no attack upon the sufficiency of the
plaintiff's allegations to entitle him to a recovery
against both. In Globe National Fire Ins. Co. v. American
B. & C. Co., 200 Iowa 847, 849, 205 N.W. 504, it is
said:
"It
is well settled that the trial of a chancery case in this
court, being de novo, is final, and another trial
cannot be had in the court below, unless for some special
reason it is so ordered. Reed v. Howe, 44 Iowa 300;
Sexton v. Henderson, 47 Iowa 131; Allen v. City
of Davenport; 115 Iowa 20, 87 N.W. 743; City Council
v. National Loan & Inv. Co., 130 Iowa 511, 107 N.W. 309;
Kossuth County St. Bank v. Richardson, 141 Iowa 738,
118 N.W. 906; McNiel v. District Court, 174 Iowa
417, 156 N.W. 358."
In
Dolan v. Newberry, 200 Iowa 511, 518, 202 N.W. 545,
it is said:
"This
result affords an illustration of the hazard incurred in
moving for judgment at the close of a plaintiff's case in
an action triable de novo on appeal. The appellees,
by so doing, rested their rights upon the evidence of their
adversary, and lost the only opportunity available to them to
prove affirmatively any defense they might have had; and we
are required to determine the merits of the case de
novo upon the record so made. Brewster v.
Brewster, 194 Iowa 803, 188 N.W. 672."
In
Brewster v. Brewster, 194 Iowa 803, 804, 188 N.W.
672, it is said:
"Contrary
to the ordinary and usual procedure in a case
of this character, the trial court, upon the conclusion of
plaintiff's evidence, sustained the defendant's
motion to dismiss plaintiff's cause of action. The record
therefore contains no testimony on behalf of the defendant,
and the question presented is whether the evidence introduced
sustains the allegations of the petition. This cause is
triable de novo in this court, and it cannot be
tried in any other manner. Blough v. Van Hoorebeke,
48 Iowa 40. * * * We are not privileged to know anything
concerning the explanation by the defendant or his witnesses
or the facts and circumstances surrounding the execution of
the deed, from his viewpoint, by reason of the motion made by
him at the close of plaintiff's testimony. We are not in
a position to speculate what the defendant's evidence
might tend to prove. The decision and the judgment entered
must be predicated upon the plaintiff's showing, and the
defendant, under the well established rule of equity, is now
foreclosed. Shetler v. Stewart, 133 Iowa 320, 107
N.W. 310, is not controlling on this point of practice.
Defendant had his day in court, and was satisfied to rest his
case on the plaintiff's showing."
In
Kossuth County St. Bank v. Richardson, 132 Iowa 370,
petition for rehearing was "'overruled without
prejudice to the right of the appellee to make application in
the district court for permission to introduce further
evidence.'" In Kossuth County St. Bank v.
Richardson, 141 Iowa 738, 740, 118 N.W. 906, in
accordance with this reservation, motion to reopen the case
and for leave to introduce additional testimony, supported by
affidavit showing misapprehension on the first submission,
had been sustained. It was held that the opening of the case
and receiving further evidence did not constitute an abuse of
discretion. In Shetler v. Stewart, 133 Iowa 320, 107
N.W. 310, application was made in this court, on petition for
rehearing, for a remand for trial, and granted. See, also
Hogle v. Smith, 136 Iowa 32, 113 N.W. 556; Allen
v. City of Davenport, 115 Iowa 20, 87 N.W. 743;
Bridges v. Sams, 202 Iowa 310, 202 N.W. 558.
In
Adams County v. B. & M. R. Co., 44 Iowa 335, 338,
after reversal in a suit in equity, the unsuccessful party
filed an amended pleading, with a showing that the matter
therein set up was unknown to him at the time of the former
trial. In substance, a case of newly discovered evidence was
made, and it was said with respect to that case:
"After the reversal of a suit in equity which is
remanded for further proceedings not
inconsistent with the opinion, it stands precisely as any
suit in equity stands between the submission and the entry of
the decree, the court being fully advised in the premises,
and the decision announced as to what decree should be
entered upon the pleadings and evidence as they then stand.
If, at that point of time, the unsuccessful party asks leave
to introduce new evidence omitted by inadvertence, or to file
an additional or amended pleading, the court might, in its
discretion, in view of the circumstances and in furtherance
of...
