Brinkley v. . Brinkley

The Code, section 72, substitutes an order stating the questions of fact to be tried for a feigned issue as it then existed. Under the old practice a feigned issue might be directed at any time before judgment, and as well upon the motion of the court as upon application of a party. The power was sometimes exercised after trial and submission to the court. (Clarke, 580; McC. Y., 436.) The mode of taking evidence under the old practice may have furnished one reason for the exercise of the power which does not now exist, but the power itself is not abrogated. It is not restricted by the Code.…