
    Caldwell v. Nash et al.
    1. Boundaries: lost corner: proceedings to establish: action of court on commissioner’s report. Where a commissioner appointed in a proceeding to establish a lost corner made his report, which included the evidence taken by him, the court had the power to strike out, on motion, irrelevant evidence, and to confirm the report on the remaining evidence, without referring the report back to the commissioners. (Compare Coombs v. Quinn, 66 Iowa, 469.)
    2. --: -: right to jury trial. In such proceedings the constitution does not guarantee to the parties a trial by jury. Coombs v. Quinn, 66 Iowa, 469, followed.
    
      Appeal from Butler District Gourt.
    
    Friday, April 23.
    This is a proceeding to establish a lost corner. A commissioner was appointed, who made a survey, took evidence, and made a report which included the evidence taken. The plaintiff moved the court to set aside the report and refer the case back to the commissioner. This motion was overruled, and the report confirmed. The plaintiff appeals.
    
      J. H. Scales, for appellants.
    
      H. G. Hememoay, for appellee.
   Seevers, J. — I.

When the cause came on to be heard, the court, on its own motion, struck out what is designated as the ex parte affidavit of L. M. Swan, and upon the remaining evidence confirmed the report. It is insisted that, when the court struck out the affidavit, it was bound to refer the case back to the commissioner, no matter if the affidavit was immaterial or irrelevant, or if the remaining evidence conclusively established the correctness of the report. The statute provides that the “ court shall hear and determime the objection, and enter an order or judgment either approving or rejecting the report, or modifying or amending the same.” Miller’s Code, 81. The court, therefore, had the power to do what it did. Substantially this same question was presented, and determined adversely to appellant, in Coombs v. Quinn, 66 Iowa, 469; and so, also, was the question as to the right of trial by jury.

The evidence sustains the judgment of the district court, and it must be

Affirmed.  