Shetler v. Stewart
| Decision Date | 14 February 1907 |
| Citation | 110 N.W. 582,133 Iowa 320 |
| Parties | SHETLER ET AL. v. STEWART ET AL. |
| Court | Iowa Supreme Court |
Supplemental opinion on rehearing. Reversed and remanded.
For former opinion, see 107 N. W. 310.
The petition for rehearing is on behalf of the defendants and appellees. The law of the main opinion is not challenged, but it is asked that in view of the circumstances of the cases as shown by the record that such opinion be so far modified as to provide for a remand therefor to the court below for hearing and trial upon merits. We have gone over the record again and reach the conclusion that the request should be granted. As will appear from the original opinion, plaintiff depended solely upon the testimony of George H. Shetler to prove the facts respecting the deeds, and the circumstances of the taking possession thereof by defendants. Such testimony was received subject to the statutory ground of objection, and the motion of defendants at the close of the evidence for plaintiff was put on the ground that no competent evidence tending to prove the allegations of the several petitions was before the court. The motion was held to be good, and the judgment was thereupon entered dismissing such petition. Now, if no further investigation into the merits of the controversy were allowable, the effect of the reversal in this court would be to leave plaintiff with a prima facie case made out, while the defendants would be debarred from bringing forward the matters of defense pleaded by them. Such a result we think ought not to obtain. True, as the cases were in equity and therefore triable de novo in this court, defendants might have gone on, and in face of the ruling in their favor introduced their evidence. But their failure to do so is not wholly inexcusable under the circumstances. We think the cases should be remanded for further hearing and trial, either party to have the right to bring into the record such further evidence as they may be advised is material and competent. That this is proper practice, see Adams Co. v. Railway, 44 Iowa, 335;White v. Farlie, 67 Iowa, 628, 25 N. W. 837.
Accordingly, the order is that the several judgments be reversed, and the causes remanded for further hearing and trial not inconsistent with our opinions and according to law.
Reversed and remanded.
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