I respectfully dissent.
In Bruce v. Galvin, 183 Iowa 145, 147, 166 N.W. 787, 788, we said:
"* * * We are committed, however, to the proposition that, upon the reversal of a judgment on appeal of a law case because of insufficient evidence, the cause goes back to the lower court for a retrial, if either party demands it, unless it clearly appears from the record that, under no conceivable state of proof applicable to the issues, can the party against whom the reversal is ordered be entitled to judgment in his favor."
That this is the settled rule is apparent from various cases set out in the Iowa Digest of West Publishing Company, section 1210 (1), Appeal and Error. Measured by this test, it does not appear that under no conceivable state of proof could plaintiff prevail upon retrial. I do not think City Bank v. *Page 744 Radtke, 92 Iowa 207, 60 N.W. 615, is factually in point. The other cases cited in support of the majority opinion are reversals with orders to dismiss made by the Supreme Court.
The proposition will be simplified, if it be remembered that the second appeal was from a ruling upon a demurrer to an additional count in the petition. That appeal had no direct bearing upon the original petition. Therefore, the case should be now considered in the light of the first appeal only. In that appeal the judgment was reversed but the Supreme Court did not order the case dismissed. Obviously, it may not be inferred that this court was then of the opinion that no retrial should be permitted. The effect of the majority opinion is to now engraft that upon the first decision.
It is not contended the dismissal was sanctioned by any local court rules concerning delay in prosecution. Nor is it suggested that the dismissal was based upon the statutory ground of disobedience of any order of court concerning the pleadings or any proceeding in the action.
Nor do I know of any rule requiring plaintiff to resist the motion to dismiss by pleading an allegation that "she had new and additional evidence to support her claim." There is no statutory warrant for such pre-trial procedure. With due respect to the majority opinion it appears to me to be necessarily based upon generalities rather than legal principles or precedents.
BLISS, C.J., and GARFIELD and MITCHELL, JJ., join in this dissent. *Page 745