Iowa Homestead Co. v. Des Moines Navigation & Railroad , 63 Iowa 285 ( 1884 )

Beck, J.

The issues and facts in this case involved in the questions made and discussed by the counsel of the respective parties are identical with those considered and determined in the third, fourth, sixth and seventh, points of the opinion in Goodnow v. Litchfield, ante, p. 275. The questions discussed in the second and eighth points of that opinion are not raised by the pleadings nor discussed in this case by counsel. The petition in this case did claim a lien, the right to which is considered in the eighth point of the foregoing opinion, but the claim by an amendment was afterwards withdrawn.

The question of former adjudication, discussed in the fifth point of the foregoing opinion, is not discussed by counsel for defendant in this case in his printed brief, though it was pleaded as a defense. Counsel for plaintiff in this case filed a printed brief used in the former case, but upon the fifth point it is not at all applicable, for the reason that the facts involved in tbe pleas of former adjudication are not identical in each case.

. The two cases were discussed at the oral argument together, all the points involved in each case being considered, but we were left to the printed briefs and abstracts in order to mate application of the arguments properly to the separate cases. Since the submission of the cases, counsel for each party has been called upon to express his understanding of the points to be determined in the cases separately. Counsel for defendant claims that the question of prior adjudication, while not presented in his printed brief, was argued orally, and is, therefore, in this case; counsel for plaintiff claims that it is not. Certain it is that it is not made in the printed brief for defendant, and we are unable to say that it was made on the oral argument as applicable to this case. The counsel for defendant having failed to present this point in his brief, he cannot, according to the spirit of our rules, urge it in oral argument. In view of the want of agreement between counsel, we are required to hold that the question of prior adjudication cannot be determined in this case.

Following the decision of the preceding case, (Goodnow v. Litchfield,) the decree of the district court will be reversed, and the cause will be remanded for decision in harmony with that opinion, or, át plaintiff’s option, such a decree will be entered in this court. It will be remembered that no lien is claimed in this case as in the other.

Eeveksed.