Saunders v. Halliday , 48 Iowa 81 ( 1878 )

Adams, J.

HheBsupi'emlin nom’’trml de The plaintiff has not assigned errors, and claims that the action is triable de novo. The action was tried below KPon written evidence, and the evidence is all before us. There was, however, neither motion nor order in the court below that the action should be tried upon written evidence. Such being the fact, the action is not, we think, triable de novo in this court. The appellant insists that the action was tried upon written evidence by agreement, and that it is, therefore, triable de novo under the rule held in Van Bogart v. Van Bogart, 46 Iowa, 359. But the abstract fails to show anything more than the mere fact that it was tried upon written evidence. We think that an agreement which should be sufficient to supersede the necessity for a motion and order should be an express agreement. Parties are entitled to know, at the appearance term, whether the action is to be triable de novo in this court or not, that they may govern themselves accordingly. If neither motion nor order nor express agreement is made for a trial upon written evidence, either party has a right to assume that the action will not be triable de novo in this court, whether the evidence is taken at the trial below in writing or not. This case not being so triable, and there being no assignment of errors, the judgment of the court below must be

Affirmed.