i. practice: on appeal. The first point made by the plaintiff’s counsel is that the court erred in refusing to her a trial by jury. Upon this subject the Code enacts as follows:
*193“Sec. 2740. Issues of fact in an action in an ordinary proceeding, must be tried by jury, unless the same is waived. All other issues shall be tried by the court, unless a reference thereof is made.
“ Sec- 2741. All issues of fact, whether ordinary or equitable, shall be tried upon oral evidence taken in open court, except that depositions may be used as now provided in an action by ordinary proceedings; and upon appeal, no evidence shall go to the Supreme Court, except such as may be neces•sary to explain any exception taken; and such court shall try only legal errors duly presented.
“Sec. 2742. But in equitable actions, other than actions to foreclose mortgages or instruments in writing whereby liens or charges on' property are created, not including trusts, to enforce mechanic’s liens, or for divorce or nullity of marriages, if any party shall at any time during appearance term, move the court for a trial upon the written evidence, the court shall either order all the evidence to be taken in the form of depositions, or shall cause all the evidence offered on the trial to be taken down in writing, to be certified by the judge and made a part of the record according to the requirements of the motion. In either of such cases, all the evidence so taken shall go on appeal to the Supreme Court which shall try the cause anew.”
By Sec. 4, Art. Y, Const, of Iowa, it is declared that “ the Supreme Court shall have appellate jurisdiction in cases of chancery, and shall constitute a court for the correction of errors at law. ****.”
The evident meaning of Sec. 2742 is to except an action for divorce from those equitable actions wherein all the evidence shall go on appeal to the Supreme Court for the trial of the case anew there. The difference between a court having appellate jurisdiction proper, and a court for the correction of errors at law is, substantially, that the former tries cases de novo, and renders such judgment as should be rendered upon the facts and the law, while the latter simply inquires into the alleged errors of law only. Under our Constitution the Supreme Court has appellate jurisdiction only in chancery *194cases. It may not try such cases as upon errors at law. By Art. I, Sec. 9, also, it is declared that “the right of trial by jury shall remain inviolate.” The right of trial by jury, therefore, exists in actions at law, and the right of trial on appeal exists in all chancery cases. A party may not, therefore, be denied a trial by jury, because the action is in chancery, and then be denied the right of trial as upon apjneal because the action is one at law. Every party has, under our Constitution, a right either to a jury trial in a court below or a trial as upon appeal in the Supreme Court. An action of divorce was originally cognizable in the Ecclesiastical Courts, and afterwards became a cause of equitable cognizance in the English Chancery Courts.
By Sec. 2742, supra, it is recognized as an equitable action, and Sec. 2511 declares that it shall be prosecuted as such. It being an equitable action, a right of trial by jury does not exist, and there was no error in refusing it. It would have been competent for the court to have had the issue respecting the alleged adultery tried by a jury in order to advise the conscience of the court, and this in analogy to the English Chancery Practice. A refusal to do so, however, constitutes no ground for interfering with the judgment. But since the action of divorce is an equitable action, it comes to this court by appeal proper and is triable here anew, under the Constitution, regardless of the general provisions of Sec. 2742, supra.
We have, severally, carefully read, and some of us have re-read all the evidence in the case, and we are entirely united in the opinion that the fair preponderance of the evidence establishes the claim made by the plaintiff in her petition. It would not be conducive either to good morals or to the law of the case for us to re-state or review in this opinion the evidence or the substance of it. The j udgment of the court below, therefore, must be reversed, and to the plaintiff will be given a divorce.and the custody of the child.
It has been made to appear to us by motion in this action, supported by affidavits, that some changes by execution sale and otherwise have been made in the property of the defend*195ant since the action was tried below, rendering it proper that the cause should be remanded to the Circuit Court for hearing and decision upon the amount and character of the alimony.
The cause will, therefore, be remanded, with instructions to render a decree granting to the plaintiff a divorce and awarding to her the custody of the child, and the allowance of such alimony in. property or money as the court shall be advised.
Reversed.