Garmoe v. Windle , 1888 Iowa Sup. LEXIS 185 ( 1888 )

Seevers, C. J.

— Abtil Sturgeon was the original defendant in this case. Since the commencement of the action he deceased, and the appellants were substituted as defendants in his place and stead. This is the third appeal. The decision in the former appeals will be found in 65 Iowa, 147, and 67 Iowa, 700. When the first appeal was determined, the then defendant Sturgeon filed a motion, asking this court to remand the cause to the district court, with leave for him to introduce further evidence upon several stated grounds, on a trial anew in such court. This motion was overruled, and afterwards procedendo was issued, directing the district court to proceed and make disposition of the cause in accordance, and not inconsistent, with the opinion' of this court. The defendant moved the district court upon substantially the same grounds as stated in the motion filed in this court, for leave to introduce additional evidence, and that the cause be tried anew. This motion was sustained, and the plaintiff appealed. It was held that the order of the court sustaining the motion was not appeal-able. . Afterwards the cause came on for hearing, and the case was tried, by agreement, on the pleadings and evidence, as stated in the abstracts prepared for and used in this court on the former appeals, together with certain additional evidence introduced by the defendants, and judgment was rendered for the plaintiff. The district court must have held that upon the whole evidence the plaintiff was entitled to judgment, or have refused to consider the' additional evidence, and for this reason reached the same result. We find it necessary to consider only the last ground. It is a self-evident proposition, in accordance with the settled practice of this court, when the motion to remand, with leave to introduce additional evidence, was overruled, that the plaintiff was entitled to judgment as a matter of right, either in this or the district court, in accordance with the opinion of this court. First Nat. Bank v. Baker, 57 Iowa, 197, and 60 Iowa, 132. The overruling of the motion amounted to a ruling or decision that the defendant was not entitled to the relief asked upon the showing made, and, as the district court was asked to consider the additional evidence upon substantially the same grounds, it follows that it did not err in refusing to do so, which, for.the purpose of this case, we may assume is the ground upon which it proceeded. Counsel lor the appellants insist that the additional evidence was ° admitted by consent, or at least without objection. This we find from the record to be a mistake. Its introduction was objected to at the proper time or times, and in a proper manner. 1 Affirmed.