American Emigrant Co. v. Long

• Decision Date: 09 April 1898
• Parties: THE AMERICAN EMIGRANT COMPANY v. ISABELLA M. LONG, Appellant
• Court: Iowa Supreme Court

74 N.W. 940

105 Iowa 194

THE AMERICAN EMIGRANT COMPANY v. ISABELLA M. LONG, Appellant

Supreme Court of Iowa, Des Moines

April 9, 1898

Appeal from Calhoun District Court.--HON. J. H. MACOMBER, Judge.

THIS is an action to quiet the title to certain lands in Calhoun county. There was a decree for plaintiff in the court below and defendants appeal--Reversed.

REVERSED.

Charles A. Clark & Son for appellants.

H. E Long for appellee.

OPINION

WATERMAN, J.

It appears by tacit admission that this is one of a number of actions involving a like federal question. One of these cases (American Emigrant Co. v. Rogers L. M. Works, 83 Iowa 612, 50 N.W. 52), was, by writ of error to this court, taken to the supreme court of the United States, and there disposed of adversely to the claim of the plaintiff herein. See Rogers L. M. Works v. American Emigrant Co., 164 U.S. 559 (17 S.Ct. 188, 41 L.Ed. 552). The other cases were continued from time to time, waiting the decision of the federal tribunal. In accordance with the holding in the last-mentioned case, this at bar must be reversed if a hearing on its merits can be had. But appellee urges certain objections to our consideration of the issues involved, and to these we shall give due attention.

II. This action was originally brought by one J. A. Harvey, as attorney for plaintiff, and he continued to act as counsel in the case for many years. The suit was begun in the year 1877. The record does not disclose that Harvey ever withdrew his appearance as attorney. Notice of appeal was served upon him by defendants, and it is now claimed that he had ceased to act as attorney in this case some months before such notice was served, and therefore the case is not properly in this court.

III. It is also claimed there is no showing that we have all the evidence before us, because the certificate of the judge to the transcript is defective. The notice of appeal, spoken of was served November 9, 1889. Thereafter counsel for defendants herein, and one J. J. Davis, who it is admitted was at the time one of counsel for plaintiff, entered into the following written stipulation: "American Emigrant Company v. Julius Daniels, et al., and other similar appeals. Appeal from Calhoun District Court. Stipulation. Whereas, appeals have been regularly taken and perfected by the above plaintiff and defendants, or by the plaintiff and defendants respectively, from final judgments and decrees of the district court of Iowa within and for Calhoun county in the following entitled actions, which appeals in each of said actions are as shown below, namely: The American Emigrant Company v. Isabelle M. Long, et al. (No. 315.) Appeal by defendants; also, appeal by plaintiff. [About fifty other cases are here recited.] Now, with a view to saving expense touching transcripts and records, and to prevent all questions which might arise from loss of original papers, or other casualty, it is hereby stipulated and agreed as follows: (1) That the plaintiff and defendants, respectively, in all of the actions above enumerated, took appeals to the supreme court of Iowa as above set out and shown, which appeals in each instance were taken by said plaintiff and defendants, respectively, by serving, within six months from the date of the decree, in each instance, on the attorneys of record of the adverse party or parties, and on the clerk of the district court of Calhoun county, a notice, in writing, of appeal to the supreme court of Iowa in all cases in accordance with law, and by at once filing such notices of appeal in the office of the clerk of said court, and having the same entered on the appearance docket in each case. (2) It is also stipulated and agreed that, in each case in which an appeal or appeals was or were taken as shown above, all of the evidence offered or introduced on the trial of each of such actions in the court below was certified and made of record by the judge before whom such actions were tried in the court below, within six months after the dates of the judgments and decrees, respectively, and, so certified, was...