Wachendorf v. Lancaster

• Decision Date: 20 September 1883
• Citation: 16 N.W. 533,61 Iowa 509
• Parties: WACHENDORF v. LANCASTER.
• Court: Iowa Supreme Court

61 Iowa 509

16 N.W. 533

WACHENDORF

v.LANCASTER.

Supreme Court of Iowa.

Filed September 20, 1883.

On rehearing.

SEEVERS, J.

Although appellees failed to appear at the hearing and make an argument, they have seen proper to file a petition for a rehearing, and therein insist we have overlooked a portion of the record, which, being considered, shows the foregoing opinion to be erroneous. We cannot sanction the practice attempted to be inaugurated in this case, and we take this occasion to say that we will not grant a rehearing upon the application of a party who failed to file or make an argument when the cause was submitted. If, however, we are satisfied an error has been committed, we, on our own motion, will order a rehearing for the purpose of correcting the error. The record shows that the equitable issue was alone submitted to the referee, and he found it had not been established, and so reported to the court. The report was set aside and judgment rendered for the defendants. No appeal was taken from the decision setting aside the report, but as the appeal was taken in the whole case, and it is insisted the record does not purport to contain all the evidence before the court when the cause was finally submitted, the presumption must be indulged the decision of the court is correct.

The record shows that all the evidence before the referee is before us; or rather, more strictly speaking, that all the evidence before the court when the motion to set aside the report was determined is now before the court. The motion was filed June, 1880, and was determined in November, 1881, and as a part of the same judgment entry it is stated, “and the cause being tried to the court and submitted on the pleadings and evidence,” the court found for the defendants and rendered judgment against the plaintiffs for costs. Now, taking the record all together, we do not believe any issue was determined except the equitable defense pleaded, which was submitted to the court upon the evidence before the referee. When the court set aside the report it necessarily determined such defense had been established by the evidence, because only one ground was stated in the motion, which was that “the finding and report of the referee is not sustained by the evidence.” Having found this to be so, it necessarily followed that the equitable defense had been established, and therefore the defendants were entitled to judgment. In so finding the court erred, as stated in...