dissenting. — Believing that a motion for a new trial was necessary in this case, to present the point made by appellant for our review, I have not deemed it necessary to determine the correctness of the second question discussed in the foregoing opinion. Because there was no such motion, the judgment below should be affirmed.
The majority opinion misconceives, as I believe, the meaning of § 2631 of the Revision, and misapplies the cases of Warner, Adm'r, v. Pace, and Corner & Co. v. Gaston, 10 Iowa, 391, 512. In those cases, the question here made did not arise, and if anything was said which can be construed as bearing upon it, it is mere diota, and should not *378be taken as authority. But if so, as I took no part in said decisions, I do not regard myself as concluded by them. I am not aware of any case in this State in which it has been held that a motion for a new trial was not necessary. I think the court below should always have an opportunity, while the record is still before it, to retrace its steps, and that this is and should be given by a motion for a new trial. This, I am sure, is the practice, and I feel equally well satisfied that it is the law. More I need not say at this time. .