(dissenting) — I cannot conscientiously concur in the majority opinion. It comes as a surprise, even as a shock, to me to hear a majority of the court say we understood, when the other appeal was decided, that we were remanding the case for further proceedings that might result in a second appeal.
I. I have no clear recollection of just what was said by plaintiffs’ attorney in oral argument on that submission. Certainly if it did not mean plaintiffs were abandoning their claim to interest, the appeal should have been dismissed or at least the submission should have been set aside and the case remanded without opinion until a final disposition of the whole controversy was made in the trial court.
Whatever th-eir attorney’s exact language was, I understood *424the plaintiffs were abandoning their claim to interest. They had cross-appealed because no provision for interest had been made in the trial court’s decision. If they intended, by what was said in oral argument, to submit to the trial court the matter of allowance of interest, after decision of the pending appeal, it was a clear change of position by them. Their written brief and argument at that time was based on an assumption interest had been denied, not on any theory that the matter was still pending in the trial court. And that assumption, I submit, was the only one consistent with the language of our opinion on that appeal or even consistent with the fact we wrote any opinion at all on the main appeal without disposing of the cross-appeal.
II. The theory of the majority that the result of their opinion is not to permit a splitting of the cause of action is, I think, unsound and not supported by any authority. The fact the court was performing the function of a jury in addition to ordinary court functions does not seem to justify an appeal before both functions have been performed. Until that happens the decision is not final and should not be considered appealable. To treat it otherwise is to permit splitting of the cause of action.
When plaintiffs cross-appealed before, they, in legal effect, assumed interest had been denied and complained of that fact. We said in the opinion that since they were not seriously pressing that question we were not giving the matter any consideration. That meant to me that they were acquiescing in the denial of interest by the trial court and abandoning the cross-appeal.
III. It can hardly be contended that the claim for interest should not have been made and adjudicated by the trial court in connection with the award of damages. Plaintiffs knew their land had been taken and could have shown that fact as an element of recovery additional to the award of damage.
In Hayes v. Chicago, M. & St. P. Ry. Co., 64 Iowa 753, 755, 19 N.W. 245, it is said: “The question now presented is as to whether this fact [that defendant had taken possession] should have been shown upon that hearing. If it should, it is too- late to show it now.” The opinion then quotes from Stodghill v. C., B. & Q. R. Co., 53 Iowa, page 346: “ ‘An adjudication is final, and conclusive, not only as to matters actually determined, but as to *425every other matter which the parties might have litigated and have had decided.’ ”
Later the same Hayes opinion says: “Notwithstanding the informal method of procedure, we cannot think that the statute contemplates that the damages in a case like this shall be assessed by piecemeal — a part by a jury, and a part by a court sitting in equity."
In that case the plaintiff was denied interest on the award because he failed to have it included in the award and was attempting to collect it in a later procedure. The decision was based on the fact “he is seeking the adjudication of his case by piecemeal.”
This appeal illustrates the wisdom of our rule against “splitting.” I think it applies here and should be adhered to. The decision of the lower court should be affirmed.
Bliss and Thompson, JJ., join in this dissent.