Iowa capitol reporter. [volume] (Iowa City, Iowa) 1841-1855, 1854-02-08
An Abstract Ofelle DectslOma Of the
Supreme Court Of Iowa.
NOVEMBER TERM. A. D. 1859.
Present Hon. JosKPu WuuAHs, Chief Justice
). d Jons = ds KIss.r. Judges.

!" JOAN T. KrssEr. Judges. e
GEoRGE CREME,
Isaac Wilbur a al. Appeal from Scott Go.
. " - .. . :, Affirmed.
Held, l. That all distinction between Law
aud equity Jurisprudence. As not abolished by
the code Of Iowa.
2. That section 1888 Of the code. which abol
ishes all techpical forms Of actions and plead
ings. has application only to actions at law.
3. That under the constitution Of sshe.s .ss.-.. !
the legislature does not spos~.
sahnl;oh ia d;sss-sStise attriputes OF law anu
u; :3 Is iaesk;ty of. each being expressly
..~sis,6 lh6s lnstrument, in defining The
|i6i n esl 4 A. .ssss searlr 60 :ss'
inference OF intendment, is necessary to des-
troy or modify the established Jurisdictions of
courts, even when the Legislature have the con
stitutional power SO 10 do.
s. That the decisions under the New York
code are applicable to the code of Iowa in ma
ny particulars as to pleading and practice. but
they are not applicable on the question of blen.
ding law and chancery powers-their constr
tuition, courts and code differing materially
from ours.
6. That the object Of our code, was to ere
wise, consolidate and properly arrange" ":he
general statutes of the State" In the perfor-
nance of this duty, the great land marks. the
distinguishing characteristics, between law aud
equity are preserved. The forms of law are
changed. but the great principles remain sep.
arate, distinct and untramelled; in essence, the
same; in form, divested Of antiquated fictions
aud useless technicali.ies. This was the re-
formation intended. and this is all that as
accomplished by the code.
Z. That the law and equity powers confer
ed upon the District courts. are to be separate.
ly and distinctly exercised; and that as all ca.
ses in the Supreme court must come under one
Of these distinctive jurisdictions, SO should all
cases be classed in law or equity in the iEferi
or tribunals before whom they originate.
8. That as the jurisdictions of law and equi.
ty cannot be confounded, it follows that q
creditor whose demand is purely legal, canno
invoke the equity side OF the district court. te
reach legal assets. nor subject property to tn,
satisfaction of legal demand, until the deb
has been ascertaiued by at least a judgement
at law.
8. That in most cases, not only judgemen
is required, but also return of an execution
upsatisfed, before a party can file a bill il
chancery, TO reach the equitable assets Of III
debtor.
Richard E. East, J Appeal from johnson Co
Isaac PORK. N''"s'
Where writ of error was tested as fol
lows:
witness my hand and the seal ofsaid court
Dec 80, 1882.
s. II. SAMUELS, Clerk Of
.-. District Court, Clinton County,
it was held, That the writ was sufficiently at
tested, under section 1892 of the code.
Davis County, Appeal from Davis Co
Hosea B. Horn.
Where the Commissioners of Davis county
allowed the fund commissioner of that county
a stated sum for his services, to be paid out o
the school fund, and where the defendant, VIII,
was not party to the record, and had no con
nection whatever with the school fund, suet
out a writ Of certiorari, and had the case eerti
fed to the District court, it was held
1. That the District courts may, at common
law, issue writs of certiorari to have the pro
ceedings Of inferior tribunals certified befor
them. in order to revise and correct those pro
e., H.
| 2. That this writ should not be issued whsr
the right of appeal exists. unless there ha
been q usurpation of power IN the denial o
that ght.
3. That the defendant. not Icing party b
the record in the case before the county com
missioners, and having no connection with tn
school fund was not entitled to sue out wri
OF certiorari.
James Stone, Appeal from Polk Co.
Wm. McMahan
Held. that under section 2i35 Of the code
the duplicate receipt of the Treasurer Of tn
Board of Public works for the Des Moines rIv
er improvement, is prima foeie evidence Of ii
tie to the real estate described in said dupli
cate receipt.
JOSIAH Nichols,
PianR PGil@fiss assd o. Louisa Co. Affirmed.
He'd. That the original notice provided b
the code is not process. as contemplated b
the constitution, and need not be in the s,yl
of"The State of Iowa"
2. That an original notice informing the d,
fendant that petition would be filed Gin tL
Office OF the clerk Of the District court
Des Moines county" is sufficiently descriptiv
Of court.
3. Where it was urged that subscriptions I
the capital stock Of corporation, were mad
upon other conditions than those named j
the articles OF incorporation, and therefore th
subscription was invalid for want Of mutual
ty. and 1t appeared that five per cent, was pal
on the subscriptions by the defendant and &C
cepted by the company, it was held, that th
payment by the defendant, and the accep:anc
by the company showed sufficient concur
renee In thoee new conditions, to create mutu
atty.
4. That although the capital stock OF tn
Burlington and Louisa Plank Road Coippan
is fixed at $780, 600, the articles Of incorpora a
tion clearly contemplate the commencement o
business as soon as S5,0 900 in stock was sub
scribed, and after that amount of stock wa
obtained the company had right TO call TO