#### Russell & Co., Appellants, v. Newton Lamb, Appellee.

1. Practice; trial on cross-petition after dismissal by plaintiffs. Where an action was brought to redeem certain real estate from the foreclosure of a mortgage, and the defendant *559filed a cross-petition, asking that Ms title to the property in question he quieted, as against said claim of the plaintiffs, *held,*that, upon the dismissal of the action by the plaintiffs, the court properly retained the cause for the trial on the defendant’s cross-petition.

2. -: notice : appearance. A party' cannot, after appearance to an action, complain of the want of notice.

3. -: PARTY NOT PREJUDICED BY MISNAMING A PLEADING. The designation of a cross-petition as a “ cross-bill” will not defeat the right of the petitioner to the relief asked, conceding the term “ cross-bill ” to he improper.

*Appeal from PolTc District Qourt.*— Hon. W. F. Combad, Judge.

Friday, May *22,*1891.

Actiom in chancery to redeem in effect from a decree of foreclosure of a mortgage brought by the holder’of another mortgage. After a cross-bill was filed, the plaintiffs dismissed their petition without prejudice. The defendant insisting upon a trial on the cross-bill, the plaintiffs filed a petition asking for the removal of the cause to the United States circuit court, which was denied. The cause came on for trial on the cross-bill, and a decree was entered for the defendant as prayed for by him. The plaintiffs *appeal.*

Affirmed.

Macy, *Sweeny & Jones*and *Cole, Me Vey & Ciarle,*for appellants.

*W. G. Harrison,*for appellee.

Beck, C. J.

I. The appellants raised no objection as to the correctness of the ruling of the district court in ‘ mal on cross-djTmiss| refusing to transfer the case to the United States circuit court. The only questions discussed fbyr involve the authority of the district court to proceed with the case made by the cross-bill after the plaintiffs had dismissed their petition. The position of counsel for the plaintiffs, denying the authority of the court to render judgment on the cross-bill after the plaintiffs’ petition was dismissed, is stated *560¡in the following language: “The defendant, by bis ¡answer in tbis case, did not state'a cause of action, and in law did not make or file a ‘cross-bill’ or ‘counterclaim ; ’ and, bence, tbe court bad nothing before it of wbicb it could take jurisdiction after tbe plaintiffs’ action was dismissed.” Tbe facts stated by counsel upon wbicb tbis position is based are not shown by the abstract, but, on tbe contrary, it is averred that, under regular and valid proceedings to foreclose tbe mortgage, wbicb are assailed by tbe plaintiffs, the defendant acquired tbe fee-simple title to tbe land in controversy; and that tbe plaintiffs, in those proceedings, resisted tbe foreclosure of tbe defendant’s mortgage. Tbe defendant prays that tbis answer be taken as a cross-bill, and that tbe title of tbe lands be declared to be vested in him, and that tbe plaintiffs be forever enjoined from making any claim to tbe land, and other and further relief be granted, to which in equity be may be entitled. Tbis cross-bill was amended by tbe defendant in an answer.

Section 2663, of tbe Code, is in tbe following language : .‘ ‘ When a defendant has a cause of action affecting tbe subject-matter of tbe action against a codefendant, or a person not a party to tbe fiction, be may, in tbe same action, file a cross-petition against the codefendant or other person. Tbe defendants thereto may be notified as in other cases, and the defense thereto shall be made in the time and manner prescribed in regard to tbe original petition, and with tbe same right of obtaining provisional remedies applicable to tbe case. Tbe prosecution of tbe cross-petition shall not delay tbe trial of tbe original action when a judgment can be rendered therein that will not prejudice tbe rights of tbe parties to tbe cross-petition.” It is very plain upon tbe statement of facts wbicb we have made that tbe defendant showed in bis answer that be bad a cause of action against tbe plaintiffs affecting tbe land in question, tbe real subject of tbe plaintiffs’ action. He shows that be bolds tbe fee-simple to tbe land, and that tbe plaintiffs set up an invalid claim of right, *561which, if sustained, will defeat the defendant’stitle. He has, upon these facts, under the familiar rules of equity, an action to quiet his title, and remove the cloud resting thereon by reason of the plaintiff’s invalid and inequitable claim. We shall not be expected to cite the books to sustain this familiar rule.

II. Counsel for the plaintiff think that, as the plaintiffs were not notified as prescribed by the statute, _. notjce. appearance. the district court should not have taken cognizance of the cross-bill. But the plaintiffs appeared to, and answered, the cross-bill, and cannot now complain of want of notice.

III. The answer of the defendant asks that it be taken as a cross-bill. The name given the pleading in 8_.p ' díeédbymis-pfeadmg8, the statute is “cross-petition.” The same pleading is intended to be designated by both Tlie law will not defeat rights because things are called by wrong names. But the term “cross-bill,” we think, was not incorrectly used in the pleading. It is often used in our reports and digests. See 2 McClain, Dig. 296; *Thode v.*Spofford, 65 Iowa, 294.

IY. Counsel for the plaintiffs claim that the defendant introduced no evidence to sustain his cross-bill. The original abstract, filed by plaintiffs, plainly shows to the contrary, and, if possible, it is still made more' plain by an amended abstract, • which specifies, without setting them out, the records in certain actions and certain deeds. It is certain that the defendant did introduce evidence in support of his cross-bill. What that evidence was the plaintiffs have not attempted to show by their abstract or otherwise. We cannot, therefore, review the decree of the court below. Being a chancery case it is triable here *de novo*/ but, could it be reviewed upon errors, we cannot consider the evidence, for it is not brought before us to determine whether its sufficiency supports the decree of the district court.

No other questions demand consideration in the case. The decree of the district court is ajfj’ibmed.