Court to find method, the same steps must be As to what is sufficient certificate. etc., to show that the evidence is all in the record, see notes to § 3184. Although a law action is tried on If the evidence is not all in the written evidence, and on appeal to record. the same presumption obtains the supreme court all the evidence is as to the correctness of the judgment taken up, the case can still only be of the court below as in an ordinary tried upon errors, and not de noo: action: The State v. Orwig, 27–528. Dore v. Ind. Dist. of Keokuk, 41-689. [Since the repeal of the original PRACTICE: Where an equitable ac-section the decis ons as to the method tion is set down for hearing upon of securing a trial de novo, as there written testimony and so tried, the provided, have little or no application, case upon appeal must be tried de but a few of the leading cases are prenovo and not upon assignment of er- served.] rors, and the method of trial in the su- Unless there is a motion, order, or preme court is dependent upon the express agreement at the apearance manner in which it was tried below, term for trial upon written evidence. and not upon the nature of the case. the cause cannot be tried de novo: If all the evidence offered on the Saunders v. Holliday, 48-31: but a trial below is admitted, subject to motion is not essential; an order to objection, and is brought before the that effect made by the court by consupreme court, as is the better prac-sent of parties will be suffic.eat: tice, it will decide upon its compe- Robinson v. First Nat'l Bank of tency, etc., without reference to the Cedar Rapids, 48–354. ruling thereon of the lower court; but if any evidence has been excluded and is not of record, the supreme court will review the ruling of the lower court in that respect: Blough v. Van Hoorebeke, 48-40. Where the court has ordered an equity cause to be tried on written evidence, oral testimony cannot be presented. The trial in the supreme court is final, and nothing remains for the court below, but to enforce the decision of the supreme court by proper decree, a new trial on amend ed pleading not being allowable: Sexton v Henderson, 47-131; and as to right to amend pleadings in such cases, see notes to § 2689. Where the necessary steps to secure a trial de novo have not been taken, errors of law properly assigned may be considered: Jordan v. Wimer, 45-65; Lutz e Kelley, 47-307; but no ruling will be considered, which has not been properly excepted to: Schmeltz v. Schmeltz, 52-512; Krapfel v. Pfiffner, 24-176. An agreement of the parties at the appearance term to try a case upon written evidence supersedes the necessity of a motion or order: VanBogart v. VanBogart, 46-359. But the consent of parties that an order be made for trial upon written evidence does not amount to a consent to such trial de noro, in the supreme court: County of Woodbury v. Lambert, 51-698. The appearance term is that term at which it is first ascertained that an issue of fact is to be tried: Ibid; Vinsant v. Vinsant, 47-594. The motion should be in writing and filed, and a nune pro tunc order at a subsequent term will not make good the want of such motion: Tre>cot v. Barnes, 46-614. So the order must be in writing and made before the trial: Berryhill r. Smith, 51-127; and where there is neither motion nor order, there can be no trial de novo: Ibid; Ashcraft v. De Armond, 44-229; and, generally, as to the steps necessary to be 'aken, see An equity cause cannot be tried Vinsant v. Vinsant, 47-594; Hamde noro in the supreme court unless mersham v. Fairall, 44-462; Altman the testimony is all embodied in the v. Farrington, 45-620; Clark v. Reyrecord: Krapfel v. Pfiffner, 24-176.nolds, 46-674. SEC. 2743. In all trials of fact by the court, other than those contemplated in the preceding section, the court shall, if either party request it, give its decision in writing, stating, separately, the facts found and the legal conclusion founded thereon; and the whole decision shall be a part of the record, and the finding shall have the effect of a special verdict. The court is to find the facts, and not the evidence of the facts: Myers v. Smith, 15-181; And such facts should be stated with the same certainty and definiteness that would be required in a pleading: Van Riper v. Baker, 44-450. Where a decision in writing is not requested. the final judgment is the only finding necessary to be made by the court: Gallinger v. Vale, 6-387. A finding of fact by the court is re garded, on appeal, in the same light as a verdict of a jury, and will only be disturbed where it is clearly and palpably against the weight of evidence: Pearson v. Minturn, 18-26; Goldsmith v. Boersch, 28-351; Leighton v. Orr, 44-679. It will not be set aside as against evidence, when the evidence is conflicting: Smith v. Walker, 49-287. ficient to support a conclusion of fact, Where there is no finding of fact Provisions in case of trial by jury applicable to a trial by the court, see § 2863. As to what is necessary to secure a review in the supreme court of a case tried by the court, see § 3170. term. 13 G. A. ch. 1.7, Where no finding of facts is made, the supreme court on appeal will determine whether the testimony is suf- | SEC. 2744. Except where otherwise provided, causes shall be Tried at first tried at the first term after legal and timely service has been made. R. 3007. SEC. 2745. The appearance term shall not be the trial term C. 31. 1762. for equitable actions, except those brought for divorce, to foreclose mortgages and other instruments of writing whereby a lien or charge on property is created, or to enforce mechanics' liens. The provision excepting actions for | wood v. Sherwood, 44–192; Palmer v. divorce or for foreclosure, etc., from Call, 4 Dillon (U. S. C. C.), 566. the general rule as to trial term of As to the effect upon this, and the equitable actions, would seem to be following section, of the substitute for abrogated by the decision in Sher-|§ 2742, see notes to that section. 20. Exception as to equitable R. 273024-5. SEC. 2746. The court may, in its discretion, allow separate Separate trials. trials between the plaintiff and any defendant, or of any cause of when granted. action united with others, or of any issue in an action; and such C. 51,2 1768. separate trials may be had at the same or different terms of the court, as circumstances may require. Granting separate trials is disc etionary with the court: Kilbourn v. Jennings, 42-473. a joint action for slander, held, not Where a husband and wife brought | 36-266. of causes. SEC. 2747. The clerk shall keep a calendar distinguishing, first, Calendaran! criminal causes, and next, civil causes, and arranging each in the arrangement order of their commencement, and shall, under the direction of R. 3005. the court or judge, apportion the same to as many days as is be- C. '51, 8 § 1761 2 lieved necessary, and, at the request of any party to a cause, or his attorney, shall issue subpoenas accordingly. The clerk shall furnish the court and the bar with a sufficient number of printed copies of the calendar. CONTINUANCES. for. SEC. 2748. When time is asked for making application for When time is continuance, the cause shall not lose its place on the calendar, or asked to apply it may be continued at the option of the other party, and at the R. 3008. cost of the party applying therefor; for which cost, judgment may C, '51, 1764 at once be entered by the clerk unless the contrary be agreed between the parties. Not granted when party in C. 1, 1765. For want of R. 3010-11. SEC. 2749. A continuance shall not be granted for any cause growing out of the fault or negligence of the party applying therefor; subject to this rule, it may be allowed for any cause which satisfies the court that substantial justice will thereby be more nearly obtained. A continuance should not be granted for a cause growing out of the fault of a party: Connor v. Griffin, 27-248. It is not sufficient to state that due diligence has been used; the facts constituting such diligence must be shown: Thurston v. Cavenor, 8-155; as to what showing of diligence was necessary in particular cases, see Ibid; Walker v. Scofield, 39–865. A continuance on the ground of the absence of a witness, should not be granted to defendant in default, who offers no defense, nor when the residence of the witness is not given, and diligence in ascertaining it is not shown: James v. Arbuckle, 8–272. In a particular case, held, that a continuance should have been granted on application of defendants to allow them to procure testimony as to their general character: The State v. Nash., 7-347, 373. A continuance may be granted in a particular case, on account of ab sence of counsel, but if such application is refused, the supreme court would require very strong circumstances, manifesting a clear abuse of discretion, before it would interfere: Brady v. Malone, 4-146; and while the absence of a party's attorney on account of sickness might be a ground for continuing a cause to a later day in the same term, unde: the circumstances of a particula · case, held, that it was not sufficient to require a continuance over the term : Sate v. Ostrander, 18–4335, 44. The granting of a continuance on the application of a guardian ad litem, new y appointed, to enable him to prepare a cause for trial, may be proper: Blythe v. Blythe, 25-266. Facts in a particular case, held, not sufficient to warrant a continuance: Finch v. Billings, 22-228 The application for a continuance 18 addressed peculiarly to the sound legal discretion of the judge, and his ruling thereon will not be interfered with on appeal, unless the supreme court is clearly satisfied that this dis cretion has been abused and injustice thereby done: Widner v. Hunt, 4355; Childs r. Heaton, 11-271; The State v. Rorabacher, 19-154; Beone v. Mi chell, 33–45. This discretion, however, is not arbitrary, but is to be governed and controlled by legal rules: Purington v. Frank, 2-565; and see, generally, notes to next sec tion. SEC. 2750. Motions for continuance on account of the absence of evidence, must be founded on the affidavit of the party, his agent, or attorney, and must state: 1. The name and residence of such witness, or, if that be not known, a sufficient reason why not known, and also, in either case, facts showing reasonable grounds of belief that his attendance or testimony will be procured at the next term; 2. Efforts, constituting due diligence, which have been used to obtain such witness, or his testimony; 3. What particular facts, as distinguished from legal conclusions, the affiant believes the witness will prove, and that the affiant believes them to be true, and that he knows of no other witness by whom such facts can be fully proved. Where an affidavit fully complies with the requirements of the statute, it is error to refuse a continuance: The State v. Barrett, 8-536. Counter affidavits cannot be filed to contradict the affidavits for continuance: The State v. Dakin, 52-395; The State v. Bowers, 17-46. The provision that the athdavit shall show reasonable grounds of belief as to the attendance of witnesses at the next term, etc., contemplates more than a mere statement of a be lief that the testimony can be procured: The State v. Rorabacher, 19-154. The party seeking a continuance on the ground of the absence of a witness, must show that he has availed himself of the means given by the statute to procure the attendance of such witness, or to obtain his deposition: The Sate v. Cross, 12-66. The facts constituting due diligence must be shown, and from such facts the court will determine whether the necessary diligence has been exercised: Brady v. Malone, 4–146. A party must show, not only that he made proper efforts to obtain the desired evidence after he knew that it might be obtained, but also that he used due diligence in discovering it: The State v. Bell, 49-449. An affidavit for continuance on the ground of the absence of a witness, held, insufficient in that it did not show that his absence was unknown for a sufficient length of time previous to the term to admit of his deposition being taken: Widner v. Hunt. 4–355. A party is held to greater diligence in procuring the de osition of a nonresident than that of a resident witness: Peck r. Parchen, 52-46 Where a commission issued in December to take the depsition of a witness, and was not returned before trial in the following June, held that sufficient diligence was not shown: Cole v. Strafford, 12-345. As to whether sufficient deligence was used under particular circumstances. see Fiske v. Berryhill, 10203: The State v. Scott, 44-93; The State r. Spurbeck, 44-567; The State v. Dakin, 52-395; Brandt v. McDowell, 52-230. The affidavit as to what affiant believes witness will prove, must state facts, as distinguished from legal conclusions: The State v. Felter, 25-67, and a statement that the party expects to prove by the witness "all the material allegations contained in his answer" is not sufficient: Olds r. Glaze, 7-86; and the affidavit must show that the witness would, if present, testify to facts material and relevant to the issue: The State v. Bennett, 52-724; The Slate v. Williams, 8-533. The affidavit must show that there are no other witnesses by whom the facts stated can be proved: Thompson v. Abbott, 11-193; but where a par y stated in his affidavit that he knew of no person by whom the same facts could be "as fully proved as by said" witness, held that the affidavit was sufficient: Welsh v. Savery, 4241. Where, in a prosecution for murder, defendant asked a continuance on account of the absence of a witness by whom he expected to prove that he (witness) did the killing, held that the improbability that the witness would thus subject himself to a criminal prosecution, was not sufficient ground for refusing a continuance: The State v. Farr, 33–553. mit facts. SEC. 2751. If the application is insufficient, it shall be over- Overruled or ruled; if held sufficient, the cause shall be continued, unless the party may adadverse party will admit that the witness, if present, would testify R. 3012 13. to the facts therein stated, in which event the cause shall not be C. 51, 1767. continued, but the party may read as evidence of such witness the facts held by the court to be properly stated. Where the oposite party admits admitted and read, are to be taken as that the witness, if present, would the testimony of the witness in court, testify to the facts stated, the affida- and cannot be impeached by proof vit may be read to the jury as the o: different statements made out of basis of such admission: Strong v. court, unless a proper foundation Hart,7-484; but it can be read only in therefor has been laid, even though so far as it states facts which the wit- such outside statements were under ness, if present, would be allowed to oath: The State v. Shannehan, 22testify to: The State v. Sater, 8-420. | 435. The admission does not preclude legal objections, which might be made to the testimony, if the winess was present: The State v. Ged lis, 42-264. The statements of the affidavit, if The affidavit and admission are not admissible as evidence at a subsequent term: The State v. Felter, 32 49. Motion for: R. 3014. SEC. 2752. The motion must be filed on the second day of the term, if it is then certain that it will have to made before the when filed, trial, and as soon thereafter as it becomes certain that it will so need to be made, and shall not be allowed to be made when the cause is called for trial, except for cause which could not, by reasonable diligence, have been before that time discovered, and if male after the second day of the term, the affidavit must state facts constituting an 'excuse for the delay in making it. If time Amendment. tions to. is taken when the case is called to make such motion, the motion The motion should be filed as soon | Randall v. Fockler, 52-618. Section applied: C. & S. W. R. Co. v. Heard, 44-358. SEC. 2753. The application shall be amended but once, unless by permission, to supply a clerical error. Before the enactment of this provision, held, that the practice of suffering affidavits for continuance to be amended, or new ones to be filed, was one which might be productive of much evil, and which should be permitted with great caution, if at al: Widner v. Hunt, 4-355. SEC. 2754. To such motion, both as original and as amended, Written objec- the adverse party may, at once, or within such reasonable time as the court shall allow, file written objections stating wherein be claims that the came is insuflicient, and on such motion and objections no argument shall be heard unless the court desire it. R. 316. SEC. 2755. Such motion and objections shall be a part of the Part of record. record, and error in refusing a continuance or in compelling an election may be reviewed. R. 43017. Notice book.. Costs. R. 3019. Parties may agree. K、23020. Case remains on docket. R. 3022. SEC. 2756. No copy need be served of a motion for continuance or of objections thereto, but a notice of such motion shall be entered on the notice book. SEC. 2757. Every continuance granted upon the application of either party, shall be at the costs of such party, unless otherwise ordered by the court. SEC. 2758. The court shall grant continuance whenever the parties agree thereto, and provide as to costs as may be stipu lated. SEC. 2759. A case continued remains for all purposes except a trial on the facts. SEC. 2760. Where the defenses are distinct, any one of several One of several defendants may continue as to himself. parties. R. 3023. SELECTION OF JURY. How done R 23026. C. '51, 1773 Challenge. R. 2327. C. '51, § 2972. Parties cannot Ve in. R. & 3.28. SEC. 2761. When a jury trial is demanded, the clerk shall select twelve jurors by lot from the regular panel. Where the jury consisted of but feet was fatal and could not be coneleven jurors, it appearing that the sidered as waived: Cowles v. Buckparties had no knowledge of that fact | man, 6–161. until after verdict, held, that the de SEC. 2762. A challenge is an objection made to the trial jurors and is of two kinds: 1. To the panel; 2. To an individual juror. SEC. 2763. Where there are several parties plaintiffs or defendants, and no separate trial is allowed, they are not allowed to sever their challenges, but must join in them. |