ON REHEARING.
Beck, J.A rehearing in this cause was granted and it has again been submitted upon arguments in addition to those first filed. After proper consideration of all that has been said by counsel, and such examination of the questions as, in our judgment, they demand, we are united in the opinion that the conclusions reached by us upon the first argument, as above announced, are correct. As supplemental to that opinion we will proceed to state briefly certain propositions based upon the statutes which, we think, cannot be disputed.
2.-:ap-diction. I. This court has appellate jurisdiction only in cases in chancery, and is a court for the correction of errors in actions at law. Const. Art., Y, § 4. Its jurisdiction being thus prescribed, it cannot exercise powers m one class of cases which are limited to the other. The distinction between the powers to be exercised in the different cases is pointed out in the foregoing opinion and will be readily understood by the profession.
II. Under the Code an action for a divorce and other relief that may be granted therein is a chancery action. Code, §§ 2511, 2742.
III. Chancery causes tried as-law actions upon oral evidence are reviewed upon errors in this court. But the manner of trial in the court below is left to the option of the parties, or rather either party may have the trial upon written evidence. Code, §2742. But divorce cases, which as we have seen are chancery actions, are excepted from this provision and cannot be so tried upon written evidence that they may *196be reviewed upon appeal in this court as other chancery-causes. § 2742. We thus have the case of a chancery action which cannot be tried in this court in the manner contemplated by the constitution. The statute, then, is in conflict with the constitution in so far as it forbids a trial in the manner provided for by that instrument.
The statute is not objectionable on the ground that it requires a chancery cánse lo be tried on written evidence in order, to give the right of appeal. In this it is a regulation affecting the manner of appeal, the proceedings necessary to be taken prior to an appeal; it does not cut off the right of appeal. But so far as it is applicable to certain cases and provides that the right of appeal is taken away, it is' in conflict with the constitution.
The statute is not objectionable on the ground that it provides for the trial of chancery cases in the inferior courts upon oral evidence and in this court upon errors. It is not a provision that can be enforced without the consent of both parties, for either, in the manner pointed out, may secure to himself the right of a trial de novo in this court. The trial upon oral evidence in the court below and upon error here, may be regarded as with the consent of the parties. We have held that the trial of a chancery case without objection or with consent in the court below as a law action will entitle the parties to a trial in this court tipon errors. Corbin v. Woodbine, 33 Iowa, 297.
But the statute, in so far as it deprives parties to chancery actions of the right to trials in this court de novo, a right secured by the constitution, cannot be enforced. The exception found in §2742, which forbids parties to divorce and other chancery actions, claiming a trial upon written evidence, must, therefore, be regarded as of no effect.
IV. Counsel cite decisions of this court based upon the provisions of the Rev. of 1860, directing the manner of trial of equitable actions in this court, which were tried in the courts below according to the second method. Rev., § 2999. Such trials and the manner thereof differed in no respect from trials at law. Cases so tried -were reviewed here upon errors. *197These provisions were enforced by this court. Inasmuch as they were trials at law, this court properly held that errors occurring therein could be corrected upon appeal in the same manner that errors in proceedings at law are corrected. As the case in its trial assumed the character of a law action, it was proper to so regard it in this court. The decisions under the Revision upon the subject of the manner of trial of equity causes are not applicable to the question now under consideration.
3_._. assignment. Y. It is now insisted that, as plaintiff assigned errors in this court, the cause must be tried thereon; but the erroneous act of the party cannot control the jurisdiction 0f The question for us to decide is, how is the cause triable here? not, what course do parties pursue to bring it to trial. As a matter of fact it has been, and still is the habit of many attorneys who have extensive practice in this court to assign errors in equity cases, which no one claims are triable upon errors.
4__._. manner of. YI. It is also urged that if the cause is triable de novo in this court, it ought to be dismissed for it is brought here improperly upon errors. Three cases found in 1 Greene are cited to support this proposition. It is a sufficient answer to this position to remark that the statutes under which those decisions were made in no respect resemble those in force to-day." Then law actions were removed to the Supreme Court by writ of error, chancery cases by appeal. Rev. St., 1843, pp. 115, §§ 67, 68; pp. 145-6, §§ 6, 7. Now writs of error are dispensed with and one course is pursued in bringing up all cases.
6__._. mistake. YII. It is lastly urged that the case was brought here under the belief that it would, not be tried de novo and the abstract, for that reason, does not fairly present the case> The law was the same when the abstract was prepared as it is now. We do not make the law; we only declare it. The parties in all cases are presumed to have known the provisions of the law applicable to their rights. If mistaken in their views of the law they can have no relief on that ground
*198Till. It is argued that the evidence does not support our conclusions, especially as to the party entitled to the custody of the child. We are still of the opinion that plaintiff ought to be divorced and have the custody of the child. But defendant says that no evidence was taken upon that question. This was defendant’s fault. lie cannot claim a reversal of the cause on the ground that he did not introduce evidence upon questions in issue under the bill and answer which involved the rights of the parties. He had the opportunity at the time to do so and did not improve it; we cannot extend to-him another. Under the evidence before us we are still of the opinion that the plaintiff ought to have the custody of the child of the parties. It will, of course, be kept by her subject to future orders of the court.
In conclusion we may remark that, upon a re-examination of the evidence and pleadings, as well as of the arguments of the attorneys of the parties, we are well satisfied with the conclusions heretofore reached in this case. The former opinion is adhered to and refiled.