Roberts v. Leon Loan & Abstract Co.
| Decision Date | 20 March 1884 |
| Parties | ROBERTS v. THE LEON LOAN & ABSTRACT CO. ET AL |
| Court | Iowa Supreme Court |
Appeal from Clarke Circuit Court.
ACTION to recover damages for loss sustained by reason of an error in the abstract of title of certain lands, furnished by defendants to plaintiff. There was a judgment in the circuit court upon a verdict for plaintiff. Defendant appeal.
REVERSED.
Harvey & Young, Temple & Tallman, Stuart Brothers and S. McPherson for appellants.
McIntire Bros. and Bullock & Hoffman, for appellee.
The plaintiff asks this court, by a motion "to strike from the files the bill of exceptions, the transcript of the evidence and the records." The grounds of the motion are, First, that the bill of exceptions was not filed within the time prescribed by the order of the court; and, Second, that it does not sufficiently identify the evidence, pleadings, instructions and other proceedings in the case, being a "skeleton" in form. This motion first demands our attention.
The order of the court gave ninety days in which to file the bill of exceptions. It was filed a day or two after the expiration of that time. Appellants claim that, under an agreement of the attorneys of the parties, the time was extended, and that the bill of exceptions was filed within the time agreed upon. This agreement, it is alleged, was reduced to writing, and has been lost. The agreement and the execution of the writing is denied by the plaintiff, and affidavits are filed by each side of the case in support of their respective positions upon this question of fact. We find it unnecessary to decide the controversy thus brought to our attention, for the reasons which we will proceed to state.
The plaintiff filed an amended abstract, wherein she states, using her own words, "the facts as testified to on the trial." There is no denial in the amended abstract that the testimony contained in the original abstract is found in the record, but the amended abstract presents other evidence, in order to supply omissions, and it is nowhere claimed that both abstracts taken together do not present all the evidence. We are authorized to infer that they do. We have held, upon like facts and circumstances, that the parties cannot deny that the abstracts contain all the evidence, even though the bill of exceptions wherein it was certified was stricken from the record. Wells v. The B., C. R. & N. R'y Co., 56 Iowa 520. It becomes unnecessary to determine the question of fact arising upon the motion to strike the bill of exceptions, for, if we should sustain it, we should nevertheless be required, to regard the abstracts of the respective parties as presenting all the evidence.
The bill of exceptions, it is claimed, does not sufficiently identify and present the instructions given and refused, and other proceedings. But if exceptions were duly taken to rulings thereon, they may be considered, even though they be not incorporated in a bill of exceptions. The instructions and rulings thereon constitute a part of the record, and need not be set out in the bill of exceptions, in order to bring them before the court.
The plaintiff in her amended abstract alleges that the instructions given and refused are not set out in defendant's abstract. This denial would send us to the record to determine whether the defendant's abstract is correct in these respects, did not plaintiff's counsel, in their argument, if not directly, yet inferentially, admit that the instructions given and refused are found in the abstract. They argue the questions discussed by defendant's counsel, arising upon the instructions, without objection or suggestion that they are not truly set out in the abstract. They cannot, having in this manner admitted that the rulings upon the instructions complained of by defendants were made and excepted to in the court below, require us to examine the record, in order to determine whether these rulings are found therein. We may remark that, though we are not required, for the reasons just stated, to examine the record, yet, having done so, we find therein the instructions given and refused, and exceptions thereto, as they are reproduced in defendant's abstract.
The defendants were engaged in the business of making abstracts of the title to lands. Certain lands of plaintiff, or rather her husband, were sold upon execution, and plaintiff desired and proposed to redeem from the sheriff's sale. In order to do so, it was necessary for her to borrow the money required to make the redemption, and she proposed to secure the loan by a mortgage upon the lands sold, and other real property. To secure the loan, an abstract of the title of the property she proposed to mortgage was required. She employed defendants to make this abstract, and it was accordingly furnished to her. But it incorrectly gave the date of the sheriff's sale of the land, thus showing that plaintiff had about ten days longer time in which to make the redemption than was shown by the record. This mistake she claims was not discovered by her until the day before the expiration of the time in which redemption...
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