Corbin v. Pollock , 28 Iowa 596 ( 1870 )

Cole, J.

For confusion and uncertainty this record is unsurpassed. We have a transcript of the pleadings and record entries; we then have three packages of papers, one of which now contains sixteen different papers, certificates, memoranda, etc., and is marked in pencil “docket entries,- — -evidence considered by the court below and certifi cate thereof; ” another package contains nine different papers, certificates, etc., and is also marked in pencil “rejected evidence below;” the third contains more than either, including briefs of counsel, etc. The record entries show that the defendant filed an affidavit for, and asked a continuance of, the cause, on the ground that up to the term of trial his counsel had supposed the cause would be tried upon oral evidence, and for that reason he was not prepared with his proofs. This motion was overruled, and the entire cause, legal as well as equitable issues therein, were tried to the court. The equitable defense being found against the defendant, he had a right to have the legal issues tried by a jury. See Kramer v. Conger, 16 Iowa, 434. Without expressing any opinion upon the points involved, but for the reason that the record is in such condition as to render it unsafe and improper for us to pass upon them, and for the further reason that all the issues were tried by the court, a jury being waived by defendant, and since the finding upon the equitable issues might be construed so as to prevent a full and fair trial upon the merits of the legal issues, the cause will be remanded for trial de novo upon all the issues. The appellant will pay the costs of this appeal.

Remanded for trial de novo.