King v. Thorp , 21 Iowa 67 ( 1866 )

Lowe, Ch. J.

i pI1AC mSaiof cross-bin. The question raised for our attention in thiscase is one exclusively of practice, and received due consideration and a determination un¿¡er a somewhat similar state of facts in the case of Worrel v. Wade’s heirs, 17 Iowa, 76.

In the case at bar the plaintiff seeks to recover the possession of certain tracts of land described in his petition, and which he charges are wrongfully withheld from him by defendant.

On the other hand, the defendant Thorp files an answer and cross-bill denying the matters and things stated in plaintiff’s petition; and also setting forth the notice of plaintiff’s title to the lands in dispute, charging, in substance, that the same was fraudulently obtained; that he is the real owner; and he asks that the plaintiff’s title be set aside and his quieted, &c. At the March Term, 1865, the defendant moved the court to tranfer the cause to the chancery side of the docket. Pending this motion, it appearing that the plaintiff had withdrawn his suit, the same was dismissed at his costs. The court then overruled the defendant’s motion to transfer as aforesaid, and against his protest also discontinued his cross-bill, whereupon he excepted. The dismissal of the cross-bill, under the circumstances stated, was error, for the reasons which we have stated in the case of Worrel v. Wade's heirs, supra. The judgment will therefore be reversed and the case remanded.

Eeversed.