Jordan v. Winser

*1821. practice trial new *181I. The basis of the first decree in the court below was that section 1940 of the Code, which requires *182vendors’ liens to be evidenced by conveyance, mortgage, or other instrument, duly acknowledged and recorded, applied to liens which accrued prior to the Code. In this view it was entirely immaterial whether or not Jordan knew of Snyder’s claim at the time he took his lien. Upon appeal this court held that sec. 1940 had no application to this action, because the vendor’s lien existed before the Code took effect. The question of the notice of the lien then became material.

When the cause was reversed and remanded, it stood for trial anew upon the evidence, the same as a • law action. There was no finding of facts, or special verdict, upon which this court could render judgment, or order the court below to render judgment without atrial. Upon being remanded, it was the right of plaintiff to have a new trial.

II.' It is urged that no request was made by plaintiff for a new trial, or to introduce evidence. As the cause stood for trial anew no request for a trial was necessary. It was the plaintiff’s right to have the trial when the cause wfts reached for that purpose, without motion or request. This was denied him by sustaining the motion over his objection, and entering a decree against his protest.

Reversed.