The daily Gate City. [volume] (Keokuk, Iowa) 1855-1916, 1914-07-16
AN OPEN LETTER
TO JUDGE DEEMER
CONTINUED from mage A.

the Iowa supreme court has power {
do. But it does not follow that the I
8. supreme court, in reversing tn
lower court can always render jude
ment upon the finding of facts. Il
Exchange National bank vs. Thir
National bank, liz U. s. 276, % l.. ed
722, the lower court made a specia
finding Of facts and rendered jude
ment for defendant. The U. s. su
preme court held upon the finding tn
Judgment should have been for tn
Plaintiff. OF course the lower court
having rendered judgment for defend
and, made no finding of damages sus
tanned by plaintiff In this predica
ment the supreme court said:
1T is therefore. plain that the
judgment must be reversed. But
Judgment cannot now be render
ed for the plaintiff for damages
There must be a new trial. Al
though there is special finding
OF facts. It does not cover the is
sue 40 to damages. No damages
are found. The action is one for
negligence, sounding in damages.
Although the complaint alleges
that the drawers and the indoors
er are discharged for want Of no
tice OF non-acceptance, and al
though 1t is found that the drawers
We're in good credit when the
drafts were discounted, and that
the drawers and indorser had be-
come 1ncolvent by the 18th and
10th of October, 1875, there Is
nothing in tho finding Of facts on
which to base Judgment for any
specific amount Of damages. On
the new trial that question will
be open, and we do not intend to
intimate any opinion on the sub
ject."
In order that the supreme court
may be empowered to render a judg.
ment upon finding of facts there
must be finding upon every issue
in the case. and in the event that
there is failure to find upon any is.
sue of fact, the power Of the court
is limited to reversal of the judg.
ment of the lower court.
Ward VS.. Cochran, $50 U. s. 6s7:
81 l.. ed. 1895.
1t follows from the premises stat.
ed, that in law case tried to the court
In which there is rendered general
nnd1ng and judgment, the supreme
court is under the constitution and the
NJ hA = -
Of the judgment of the lower court The
phrase of Sec. 4139 of the Code, that
said court may render such Judg-
ment) as the inferior court should
have done" is applicable to law case.
tried without a jury. only when the
lower court makes a separate finding
Of facts under Sec. 1854 OF the Code.
It does not and cannot, If the consti-
tuition of Iowa is given consideration,
apply to any other law case tried with
put jury, or, more accurately speak
ng, tried with the court acting as a
ury, whether the case be a personal
injury case or case in probate in
which the parties had right to a
rial by jury.
The foregoing is preliminary to the
statement that the opinion of the
,ourt in In re Cook Estate, 143 Iowa,
SO, written by you, is unconstitution-
u. The substance of the decision Is
hat the supreme court finally decided
he case when it was previously be-
ore the court, 126 Iowa, 1853.
The case is not, aud was not, one
chancery, but is and was one in
7hich constitutional power of the
curt was limited to correcting the
rrors at law Of the lower court.
In the opinion in 1876 Iowa, 1853, the
ourt held that the lower court erred
I its conclusion of law that the dam
ges recovered for the wrongful death
decedent did not pass under his
i'll, and reversed the judgment.
In reversing the judgment Of the
'wer court the supreme court went
$ far as it had the right, or juris-
lotion, to go under the constitution.
18th its judgment reversed, the case
God in the lower court as though it
ad never been tried, without this,
roven to be the same as upon the
rst trial, the lower court must ap-
y the law as declared by the SUI
'eme court in correcting the error of
w made upon the first trial.
Besides being unconstitutional the !!
oinion in 143 Iowa, 1888, makes an
lheard of application Of the doctrine
res adjudicata. The distinction be-
veen that doctrine and the doctrine
the law of the case, is as clear
the profession as it seems to have
zen to Justice Evans who dissented
ON your opinion. The supreme i
'urt has not much further to go to
lock out the provision Of the con.
tuition as to it's power in actions a.
W completely and also the provis-
n in regard to the right of trial by
ry For if it can in law case tried
the court, de jure jury, in which
ere is no finding facts, finally de- 4
r,,,ino what tho i,,dCmort IN fho