Packer v. Packer , 24 Iowa 20 ( 1867 )

Dillon, Ch. J.

The first question made is, did the court err in refusing the defendant a trial by jury % The 1. juey: costs, defendant, in the answer filed in the District Court, did not plead that by agreement of the parties, the plaintiff was to pay the costs. He simply set up the receipt or release. This instrument the plaintiff did not deny or controvert. Thus, the only question left was, who should pay the costs ? The ecvuse ofacUon was undeniably settled by the parties; and there was no pleading setting up a contract, other than the release or receipt, that plaintiff was to pay the costs. Under these circumstances we hold that the court did not err in refusing the defendant’s “ demand for a tidal by jury.” What issue or fact he wished the jury to try was not stated to the court, nor did it appear from the pleadings. The meaning or construction of the receipt or release would present a question of law for the court, not of fact for the jury. This disposes of one question made by the appellant.

2. costs .- a®davits: practice. The only other question, relates to the admissibility of affidavits by the court to aid it in determining the question as to who should pay the costs. Appelx ° x 1 lant contends that the evidence should have been oral or by deposition so that he could have had an opportunity to cross-examine the witnesses. It is very usual to determine questions of costs upon motion or in a summary manner; and to receive affidavits to assist in such determination. Such a practice finds a warrant in various provisions of the statute (ch. 137, §§ 3328, 3440, 3442, 3447, 3448, 3452, 3461, 3465).

If the court had refused to the defendant the like privilege of using affidavits, or if the court upon defendant’s application and a showing, had refused to allow him an opportunity to cross-examine the affiants, or to take from them explanatory or counter affidavits, a very different question would be presented for our determination.

The District Court has a discretion in such cases to determine the matter upon affidavits and counter affidavits, or it may, if the affidavits leave it in doubt, or if it prefers, order the affiants to be produced in court and subject them, or allow them to be subjected, to an examination and cross-examination, and may receive any further testimony which may be offered by either party. In matters of practice of this character, an appellate tribunal is not justified in interfering with the course of the court below, unless it abused its discretion to the prejudice of the party complaining. No such case is shown by the present record. The affidavits produced by the defendant were clear and pointed, to the effect that the plaintiff was not to pay the costs, and no counter affidavits were produced or offered, nor was there any thing shown controverting the truth of the facts stated in appellee’s affidavits.

3. Receipt: release. If the writing be regarded as prima facie including the costs, which is a doubtful construction thereof, then, if it be treated as a receipt, it is susceptible of explanation, and the affidavits introduced show that it was not intended to embrace the costs. The court is authorized and required to dispose of questions of costs upon equitable principles, and the circumstances clearly establish that it was not intended to settle the costs, and that it would be inequitable to compel the plaintiff to pay them.

Affirmed.