
    Harlan v. Porter et al.
    1. Practice: trial upon written evidence. Where a case has been set down for trial upon written evidence, in pursuance of section 2742 of the Code, oral le'stimony'is not admissible.
    
      Appeal from Keokuk District Court.
    
    Wednesday, April 9.
    Action in chancery to quiet the title to land described in the petition. There was a decree granting relief sought for in á cross-bill .filed by one oi; the defendants. Plaintiff appeals. ' The fact's of the case appear in the opinion.
    
      C. G. Johnson and MeJunkin, Henderson & Jones, for appellant.
    
      Woodin é MeJunkin, for appellees.
   Beck, Ch. J.

The petition of plaintiff, praying that his title to the land therein described be quieted, was filed July 6, -1875. Porter was made the sole defendant, and in April, 1876, filed an answer and cross-bill asking that the title be quieted in himself.

On the 15th of April, 1876, .plaintiff- filed an amended petition, making W. D. Merriam and others defendants. On the same day these defendants appeared, and the cause was set clown by agreement for trial upon written evidence. December 4, 1876, Merriam filed a cross-bill praying that the title be quieted in him. It appears, from the abstract of title attached to his cross-bill, that he acquired title to .the land by a conveyance executed by Porter after the petition of plaintiff was filed. On the same day the defendants- other than Porter and Merriam disclaimed all interest in the land; On the 6th day of December, 1876, plaintiff dismissed his petition and amended petition, and filed an answer tó Merriam’s amended petition, and avers that he is the owner and in possession of the land.

The second count of the answer alleges that after the execution of the tax deed, under which Merriam claims title, plaintiff entered into a parol contract with the holder of the title under the tax deed to purchase that title; that plaintiff has been in possession of the land, and at all times ready to make payment therefor as stipulated in the contract, and that of these things Merriam has at all times had full notice.

Another count charges a fraudulent combination at the tax sale, whereby competition was prevented, to which Merriam was a party.

Upon filing this answer plaintiff moved the court to transfer the cause to the law docket, to be tried by a jury, on the ground that the issues were at law and not in" equity. The motion was overruled. Upon the trial plaintiff sought to introduce oral testimony, which was refused. These-rulings of the court are assigned for error, and present the only questions raised in the case.

II. The motion to transfer the case to the law side of the court was correctly overruled, for these reasons:. After the dismissal of plaintiff’s petition the case stood TP011 Merriam’s cross-bill, and plaintiff’s answer thereto. The cross-bill sought to quiet, defendants’ title to the land as against plaintiff’s claim. The ease made and the relief sought were clearly of equitable cognizance. The defense pleaded by plaintiff in the second count of his answer to the cross-bill, namely, an oral contract for the purchase of the land, which was known to Merriam, was a purely equitable defense. It could not have been urged had the case been tried at law.

The case was clearly of equity jurisdiction, and the court correctly overruled the motion to transfer it to the law docket.

III. The court, at the term when Merriam was first required to appear, and upon his appearance, ordered the cause to be tried upon written evidence. This order was properly made pursuant to Code, § 2742. The plaintiff, therefore, could not present oral testimony upon the trial, and the court, correctly so ruled.

The plaintiff’s argument, based upon his right to a jury trial, is sufficiently answered by the consideration that the-, case was in equity, to be tried as all issues are triable in that-forum.

No other questions are presented in this case.

The judgment of the District Court is

Affirmed.  