Olmsted v. National Life Insurance , 55 Iowa 742 ( 1880 )

Rothrock, J.

— We have been at a loss to determine whether the plaintiff in this proceeding intends it as a petition for a new trial under the statute or an original action in chancery to set aside a judgment. The petition is entitled in equity. But the defendant withdraws part of its answer as improperly pleaded under § 3158 of the Code, which provides that the “defendant shall introduce no new cause and the cause of the petition shall alone be tried.” And in its answer and upon the argument defendant demands judgment for damages as provided in § 3162, when a party fails in obtaining a new trial under the statute. The averments of the petition, with the exception .that it is entitled in equity, are substantially those required by § 3157 of the Code, providing for applications for new trials. Section 3158 requires that all of the proceedings shall be conducted in the same way, as near as can be, as in original actions by ordinary proceedings. We think, although the action was tried in an irregular way, and the order of the trial provided by § 3160 of the Code was not observed, yet that it must be regarded as an ordinary petition under the Code for a new trial.

The foregoing examination of the question as to the character of the action is necessary because no errors are assigned by appellant. If we hold the petition to be under the statute, we cannot entertain the appeal. Assignments of error are required in all appeals in actions by ordinary proceedings. We think the action must be so regarded and that the judgment of the court below must be

Affirmed.