Barber v. Scott

• Court: Iowa Supreme Court
• Writing for the Court: ROBINSON, J.
• Citation: Barber v. Scott, 92 Iowa 52, 60 N.W. 497 (Iowa 1894)
• Decision Date: 11 October 1894
• Parties: GILBERT BARBER v. JOHN SCOTT, Appellant

60 N.W. 497

92 Iowa 52

GILBERT BARBER v. JOHN SCOTT, Appellant

Supreme Court of Iowa, Des Moines

October 11, 1894

Appeal from Story District Court.--HON. J. L. STEVENS, Judge.

ACTION at law to recover damages for an alleged malicious prosecution. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.

Affirmed.

Gatch Connor & Weaver for appellant.

E. L Green, J. C. Cook and J. F. Martin for appellee.

OPINION

ROBINSON, J.

On the twentieth day of June, 1884, the plaintiff made to the defendant two promissory notes for the sum of one hundred and sixty-eight dollars and seventy-five cents each, with interest thereon at the rate of ten per cent per annum after maturity. The first was due on the first day of January 1885, and the other, two months later. They were given for rent of a farm owned by the defendant and occupied by the plaintiff. To secure the payment of the notes the plaintiff executed to the defendant a chattel mortgage on certain stock. In December, 1885, the plaintiff moved to Kansas, taking with him a portion of the mortgaged property. In October, 1886, the defendant, claiming that the mortgage debt was unpaid, filed with a justice of the peace of Story county an information, which charged the plaintiff with the crime of larceny in concealing and removing from the county and disposing of a part of the mortgaged property. A warrant for his arrest was issued, and placed in the hands of an officer for service, and such proceedings were had that the plaintiff was arrested in Kansas, and enough of the mortgaged property was there taken and sold to pay the amount which defendant claimed to be due on the notes. After having been kept in Kansas about ten days, the plaintiff was brought back to Story county to answer the information. Upon being brought into the justice's court, he waived examination, and was required to appear and answer at the next term of the district court, his bail being fixed at the sum of three hundred dollars. Having failed to give the required bail, he was committed to the county jail, in which he was kept until the last of the next March. The grand jury of the county returned an indictment against him for the offense charged, and he was placed on trial for it twice. The first trial resulted in a disagreement of the jury, and the second in a verdict of acquittal. This action was brought to recover the sum of ten thousand dollars as damages alleged to have been caused by the prosecution of the plaintiff as stated. There were three trials in the district court. The first one resulted in a verdict for nine hundred and ninety-seven dollars and twenty-three cents in favor of the plaintiff, which was set aside on account of an error in the charge to the jury. The second resulted in a verdict for the plaintiff in the sum of two thousand dollars, which was set aside on the application of the defendant for error in the charge. The third trial resulted in a verdict and judgment for the plaintiff in the sum of three thousand dollars.

I. This is the second submission of this cause in this court. 55 N.W. 502. On the first submission a motion of the appellee to strike from the record the bill of exceptions, and affirm the judgment of the district court, was sustained. A petition for rehearing was filed and sustained. Other motions have been filed, and arguments made, and the cause is again submitted for our determination.

The judgment of the district court was rendered on the tenth day of March, 1891. Thirty days were allowed the defendant by the court in which to prepare and file a bill of exceptions. On the tenth day of April, 1891, a formal bill of exceptions was filed. On the second day of the next month an appeal was taken by the defendant. One week later, the appellee filed in this court a motion to strike from the record the bill of exceptions, and affirm the judgment of the district court, on the ground that the bill of exceptions had not been filed within the time fixed by the court, and no exception had been taken by the appellant to any ruling or order made nor to the judgment rendered by the district court. The motion was supported by a partial transcript of the record, but was resisted by the appellant on the ground that the shorthand reporter's official report of the trial, duly certified, was filed on the twenty-sixth day of February, 1891, and constituted a sufficient bill of exceptions, even though the formal bill was filed too late. The motion of appellee to strike and dismiss was thereupon withdrawn, and the cause was continued. The motion was renewed at the October term, 1892, and numerous papers in support and resistance of it were filed, and all were submitted with the cause at the January term, 1893. The motion was sustained on that submission on the ground that the bill of exceptions of April 10, 1891, was not filed in time. A rehearing was granted, to permit a further examination of the questions presented by the motion and resistance, and for such further action in the case as should be deemed proper. We remain satisfied with the conclusion we reached on the first submission,--that the formal bill of exceptions can not be regarded, because it was not filed within the thirty days fixed by the order of the court. See Templin v. Bank, 69 Iowa 149, 28 N.W. 484; McCarthy v. Watrous, 69 Iowa 260, 28 N.W. 586; Coal Co. v. Smith, 68 Iowa 561, 27 N.W. 746; McFarland v. Folsom, 61 Iowa 117, 15 N.W. 863; Cobb v. Chase, 54 Iowa 196, 6 N.W. 264. But the appellant insists that a sufficient bill of exceptions was filed on the twenty-sixth day of February, 1891, and whether that is true is a question which was overlooked by us on the first submission, and is now presented for our determination. The records of the district court show that on the date named there was filed in the office of the clerk of the district court the notes of the trial made in shorthand by the official reporter of the court. As the record now exists it shows that the notes were duly certified by the trial judge and by the reporter, and that the report and certificates constitute a sufficient bill of exceptions, within the rule announced in Fleming v. Stearns, 79 Iowa 256, 44 N.W. 376, and the cases therein cited. But it is insisted that when the report was filed it had not been certified by the trial judge, and that the certificate now attached to it was signed by him more than six weeks after the report was filed, and was then wrongfully attached to the report. The certificate of the judge, excepting the signature, is in typewriting. Just below the signature is the following, in typewriting like that of the certificate: "Signed this day of , A. D. 1891." The blanks in this date line appear to have contained something at one time which has been erased, although the characters "26th," in the first blank, can now be discerned.

To sustain his claim that the certificate was fraudulently attached to the report, the appellee has submitted the affidavits of his attorneys, which tend to show that thirty-one days after the adjournment of the court which rendered the judgment in question they examined the report, and that no certificate of the judge was then attached to it. The affidavit of the reporter is also submitted, and tends to show that the certificate of the judge was signed six weeks after the adjournment of court. When an official document is found in the custody of the officer charged with the duty of preserving it, the presumption arises that it remains in the condition in which it was when the officer received it. In the absence of proof to the contrary, it must be presumed that all papers now attached to the notes of the shorthand reporter, including certificates, were so attached before the notes were filed. But it is said that that the evidence submitted in this court shows clearly that the record originally made has been changed by an unauthorized and fraudulent addition thereto, made since the filing. What weight should be given to evidence of that character now before us, if it could be received, we need not determine. It is not claimed by any one that the addition was made in this court, and the instruments in question constitute a part of the records of the district court. It is well settled that it is not competent to contradict, vary, or extend the record of the district court by certificates or affidavits filed in this court. McArthur v. Schultz, 78 Iowa 364, 43 N.W. 223, and cases therein cited; Rosenbaum v. Partch, 85 Iowa 409, 52 N.W. 181; Blanchard v. Devoe, 80 Iowa 521, 45 N.W. 911; Corliss v. Conable, 74 Iowa 58, 36 N.W. 891. If a record of the district court is defective, the defect can not be corrected in this court, but only on application for that purpose made to the district court. On a sufficient application, this court will continue a cause to enable that court to perfect its records. See Reynolds v. Sutliff, 71 Iowa 549, 32 N.W. 502; De Wolfe v. Taylor, 71 Iowa 648, 33 N.W. 154. The certificate of the trial judge appears to have been filed with the shorthand report of the trial, and, if it was, the report as certified is a sufficient bill of exceptions. The evidence offered by the appellee to contradict the record as it now appears is not competent for that purpose, and the motion to strike and affirm must be overruled.

After the rehearing was granted the appellee filed a motion to strike the evidence from the files, based in part upon a showing filed since the first submission, and a request, in case that should be overruled, that the transcript should be sent to the district court with an order requiring a correct transcript of the record, and with a further request that, in case the order should be refused, a continuance be granted, to...