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defendants: Bond v. Spark, 12 Mod., 275; Berrington's case, 3 Salk., 362; Parker v. Godin, 2 Strange, 814; Bac. Abr., Trial, L.

It was held that, if the verdict was set aside, the case must come to trial, just as it did before, against all the defendants: Sawyer v. Merrill, 10 Pick, 18; Brown v. Burrus, 8 Mo., 28.

The ground of the rule was stated by Mr. Justice Lawrence, in Rex v. Mawbey, 6 T. R., 640, where he said: "Arguments drawn from civil cases are not applicable, because in those cases there is only one venire on the record, and one assessment of damages; but that is not so in criminal cases."

And commenting upon the rule in Bicknell v. Dorion, 16 Pick., 483, the court said: "This probably discloses the ground of the rule in civil cases. When a verdict is set aside, a venire facias de novo is awarded, and no notice is taken of the first venire and the proceedings under it, and there would be nothing on the record to support the verdict in favor of those who have obtained one. * * * But however this may be in the English courts, and in those courts which conform strictly to common law practice, we have no difficulty here, because from the earliest times we have departed from that practice; no venire is awarded in making up the record, and the record is made to exhibit a plain narrative and history of the proceedings, as they occur.

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And the court held that it had power to set aside a verdict as to one defendant without disturbing it where it was in favor of the others, although there was no statute authorizing such action.

Another reason of the rule that a new trial could not be granted of a part of a case, was that every judgment was composed of an entirety of adjudication, and nothing less than the whole could be objected to on appeal or otherwise.

But under the code, the reason of the rule no longer exists, and consequently, in a proper case, courts are not bound by the rule: Lake v. Lake, 17 Nev., 336.

An appeal can be taken from some specific portion of a judgment on order.

"Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves."

In Lake v. Lake, supra, we said: "Under our practice, dissimilar judgments may be pronounced in the same action. For instance, in an action on two promissory notes, the final determination of the rights of the parties in the action may comprise a judgment in favor of the plaintiff upon one, and against him, and in favor of the defendant upon the other."

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Under the present statute of Iowa, a new trial is defined to be a re-examination in the same court of an issue of fact, or some part or portion thereof, after verdict by a jury, report of a referee, or a decision by the court."

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The statute also provides that "the former report, verdict, or decision, or some part or portion thereof, shall be vacated and a new trial granted on the application of the party aggrieved, for the following causes. Code of Iowa, 1873, section 2,837. Section 2,849 provides that "every final adjudication of the rights. of the parties in an action is a judgment, and such adjudication may consist of many judgments, one of which judgments may determine for the plaintiff or defendant on the claim of either as an entirety; or when a claim consists of several parts or items, such judgment may be for either of them on any specific part or item of such aggregate claim and against him on the other part thereof; or a judgment may, in any of these ways, determine on the claims of coparties, on the same side, against each other."

"Any party who succeeds in part of his cause, or in part of his causes, and fails as to part, may have the entry in such case express judgment for him for such part as he succeeds upon, and against him on the other:" section 2,850. And see Revision for 1860, section 3,121.

These provisions are substantially like ours on the subject of judgments, although our statute does not provide, in terms, that a party who succeeds in part may have the entry express judgment for him for such part as he succeeds upon, and against him on the other part.

But the court may undoubtedly instruct the jury to designate upon what issue they find, and also how they find upon each issue: Tiffany and Smith's N. Y. Prac., vol. 1,566, and judgment must be entered in conformity with the verdict.

In actions tried by the court without a jury, the decision may embrace findings upon each issue, and the judgment must be entered accordingly. Upon the subject of judgments the code of Iowa for 1860 was substantially like that of 1873. It went into effect September 1, 1860. Prior to that time the code of 1851 was in force. The code last mentioned provided that "all final adjudications of civil actions are judgments:" Section 1,814.

"Judgment may be rendered for or against one or more of several plaintiffs, or defendants, or the court, where practicable, may determine the ultimate rights of the parties on each side as between themselves and give judgment accordingly:" Section 1,815.

It will be seen that the sections just quoted are, in effect, like

ours.

The only provision that we are able to find in the code of 1851 upon the subject of new trials, is that "motions in arrest of judgment, or for a new trial, must be made within a reasonable time, and at the term of court at which the trial took place: Section 1,808. Now, in 1859, when the code of 1851 was in force, the supreme court of Iowa, in Woodward v. Horst, said: "It may be admitted that as a general rule, a new trial, when granted, is awarded for the entire case, and that ordinarily, courts will not dispose of a case by piecemeal. And yet, when not attended with too much confusion

or inconvenience, or where it can be done without prejudice to the rights of parties, there is no substantial or valid objection to departing from the general rule. In this case there need be no confusion, and certainly there is no prejudice. Defendant admits, in his answer, both accounts, but pleads in avoidance. The jury found properly that this plea was sustained as to one count, but erred in their finding upon the second count. What purpose is to be gained then by awarding a new trial as to a part of the case not necessarily depending upon, or connected with the other, and which has already been once properly decided."

(And see Dawson v. Wisner, 11 Iowa, 8; Berner v. Frazier, 8 Iowa, 77; Zaleski v. Clark, 45 Conn., 404; Holmes v. Goodwin, 71 N. C., 309; Menony v. McIntire, 82 N. C., 106; The People ex. rel. Coulter v. New York C. P., 19 Wend,. 118; Price v Harris, 25 Eng. Com. Law., 160; Kent v. Whitney, 9 Allen, 65; Patten et. al. v. City of Springfield, 99 Mass., 635; Hubbell v. Bissell, 2 Allen, 201.) In Hodapp v. Sharp, 40 Cal., 69, the action was to recover possession of two distinct quarter-sections of land and for damages for its use. Plaintiff recovered judgment for restitution of both quarter-sections, together with two hundred and forty dollars damages. Defendants moved for a new trial, which was denied, and the appeal was taken from the judgment and order denying a new trial. The supreme court decided that as to the southwest quarter, the plaintiff was not entitled to recover, and inasmuch as the record did not furnish the data for the apportionment in respect to the quartersections of the damages recovered for the use and occupation of the premises, the judgment would have to be reversed unless such damages should be remitted."

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It was also ordered "that upon the plaintiff's remitting such damages * the judgment for the recovery of the possession of the northwest quarter * * * be affirmed; and that the judgment for the recovery of the possession of the southwest quarter of the same section * * be reversed, and the cause reman

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ded for a new trial, as to the last mentioned tract of land.”

If the damages had been apportioned in the court below, it is plain that the court would have affirmed the judgment as to one tract and reversed it and ordered a new trial as to the other; and the result would have been that, as to one tract, plaintiff would have had judgment entitling him to possession, while a new trial would have been had as to the other.

Had the damages been apportioned, the court would have ordered a new trial of one cause of action and affirmed the judgment as to the other. The result in the lower court would have been precisely the same as though that court had granted a new trial as to the southwest quarter and refused it to the other.

The statute says the supreme court may order a new trial; so may the district court. But the supreme court may order a new trial as to a part of a case; then why may not the district court? What reason was there for compelling a litigant to go to the supreme court

in order to get his rignts as to a part of the case, but permitting him to get them in the trial court if the entire case is affected by error?

In considering an appeal from an order granting or refusing a new trial this court has the record before it that was before the court below, and in our decision we say whether or not, upon that record, the court below erred.

Since there is nothing in the statute concerning new trials authorizing the conclusion, how could we say, in any case, that the trial court erred in granting a new trial as to the entire case, or an independent part thereof, when, if it had done otherwise, we would have reversed its ruling and ordered it to proceed according to the order appealed from?

Our opinion is that the court below had power to grant a new trial of the issues relating to the property alone, if the statement showed error in the trial thereof, which materially affected the rights of plaintiff.

The court found that, at the time of marriage, plaintiff was without property, and that she has not since acquired any by gift, devise or descent; that at the time of marriage defendant owned and possessed, in his own right, valuable real estate and personal property, which embraces a large portion of the property in controversy, and which has yielded large rents, issues and profits, aggregating about two hundred and six thousand dollars; that defendant exchanged a portion of said real property, so owned by him at the time of marriage, for other real property, which he now owns, and a portion he has, since his marriage, sold, and invested the proceeds thereof, together with the rents, issues and profits, in other property, now owned by him; that since their marriage, plaintiff and defendant have neither jointly nor severally engaged in any profitable or remunerative business, out of which any of the money or property in controversy was acquired, and that there is now no common property; that the rents, issues and profits of the separate property of defendant, owned by him at the time of marriage, accruing since, after deducting therefrom all losses and depreciations suffered by defendant, aggregate more than the total cost of all the property acquired since the marriage, and more than the present total value of all the property in question, the title to which has been acquired by defendant since the marriage; that all the property in controversy, except that which defendant owned at the time of marriage, has been acquired by him by purchase or exchange, part by actual barter or exchange for real property owned by him at the time of marriage, and all the balance by purchase, with moneys arising from sales and rents of separate real estate and personal property, tolls arising from separate property, and interest received from loans of moneys that belonged to defendant alone; that at the time of marriage, defendant owned a toll road and bridge, and collected tolls thereon, conducted the Lake House hotel, and a merchandise business therein, cultivated some lands, and had certain moneys at interest; that after the

marriage, and until March, 1872, he conducted and maintained said toll road and bridge, and collected from tolls about seventy-five thousand dollars, net; that plaintiff contributed no labor, advice or assistance in the operation of said road or bridge, or in the farming business mentioned; that immediately after marriage plaintiff and defendant commenced to reside at the hotel, where defendant conducted the hotel business until the fall of 1868, when the premises were rented until January, 1870, at which time defendant resumed possession and conducted the business thereof, until the summer of 1871; that during all of said times plaintiff resided with defendant, and contributed, by her labor and advice, to the business; that defendant had his board and lodging out of the hotel business, and plaintiff was maintained, and her children, by a former husband, educated therefrom; that the crops raised by defendant, on his own lands, up to 1868, were either used in the hotel, or sold, and the proceeds had by him; that in 1866 defendant kept a hotel or eatinghouse, at Meadow Lake, California, for four or five months; that he constructed certain buildings necessary for use in the business, which were afterwards destroyed by fire; that plaintiff labored as a cook, and in serving upon the table, and contributed greatly to the business; that there was no profit in the hotel business at either place; that during all of said times defendant was engaged in loaning money at interest, collecting interest money, renting buildings and lands of his separate estate, selling such lands and investing the proceeds of such interest, sales and rents in loans, purchase of other lands, and in the construction of buildings; and that in these operations plaintiff contributed no labor or assistance; that since 1871 defendant has conducted farming operations on the lake ranch, consisting of nine hundred and seven acres of improved land, of the value of about forty thousand dollars; that thirty-three acres of this land was acquired by exchange of lands owned by defendant, before marriage, and the balance by purchase since marriage.

The evidence is undisputed that three hundred and fifty-four acres of this land was acquired by deed March, 1870, for a consideration of four thousand two hundred and fifty dollars; one hundred and sixty acres, September, 1871, for eight hun lred and fifty dollars; thirty-three acres from Hatch, by exchange; eighty acres by patent from the state, May, 1874, and forty acres, also by patent, Decumber, 1875, both in the name of plaintiff.

The court found that this property was the separate estate of defendant, evidently upon the ground that they were paid for out of his individual funds. Large crops have been raised on this ranch, which were fed to stock thereon or sold, and cattle and horses were raised and marketed. Plaintiff and defendant resided on the ranch several years, advised together and contributed their labor in their respective departments. Plaintiff faithfully performed all the duties of a wife.

We deem it unnecessary to state other findings.

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