Bingman v. Clark
| Decision Date | 19 September 1916 |
| Docket Number | 30419 |
| Citation | 159 N.W. 172,178 Iowa 1129 |
| Parties | E. W. BINGMAN, Appellant, v. W. E. CLARK, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED SATURDAY, JANUARY 13, 1917.
Appeal from Clark District Court.--T. L. MAXWELL, Judge.
ACTION in equity, to set aside a judgment and for a new trial, based on the ground that the plaintiff in a law action was denied the right to be heard on appeal, because bill of exceptions was not preserved and filed within 30 days from the entry of the judgment, it appearing that, within 30 days from the rendition of the judgment, the plaintiff requested the official shorthand reporter to attach a certificate to the minutes of the testimony taken by him, and that the reporter failed and neglected to do this within the 30 days, without any fault or negligence on the part of the plaintiff. Decree in the court below dismissing plaintiff's petition. Plaintiff appeals.
Affirmed.
Temple & Temple, for appellant.
O. M Slaymaker, for appellee.
This is an action in equity, brought to secure a new trial in a law action. The ground upon which the relief is asked will be stated in the opinion.
On the 18th day of August, 1911, the defendant herein brought an action against this plaintiff to recover damages on account of fraud and deceit in the exchange of property. Issue was joined, and the cause brought to trial to a jury on the 25th day of September, 1912. The cause was duly tried, and, on the 26th day of September, the jury returned a verdict in favor of the defendant herein, plaintiff in said cause, for $ 3,875. On the 28th day of September, 1912, the defendant in said cause, plaintiff in this cause, filed his motion for a new trial. On the 2nd day of January, 1913, this motion was submitted to the court before whom the cause was tried, and taken under advisement. On the 17th day of January, 1913, the court overruled the motion, and entered judgment for the plaintiff against the defendant, for the full amount of the verdict, with costs. After judgment had been entered, the plaintiff herein, defendant in said cause, through his attorney, demanded that the evidence taken down by the official shorthand reporter be certified, as required by Section 3675 of the Code. Plaintiff states that said demand was repeatedly made upon said reporter within 30 days after the rendition of the judgment; that, by oversight or mistake on the part of the reporter, due to the fact that the judge and reporter were engaged in official work in other counties the certificate to the shorthand notes of the evidence was not made and filed within 30 days from the rendition of the judgment, as required by the statute; that the certificate required by the statute was not attached to the shorthand notes until the 17th day of March following, and was not filed with the clerk until the 21st day of March. The plaintiff herein, defendant in said cause, did not discover, we will assume for the purposes of this cause, that the notes had not been certified to and filed within the 30 days. Believing, however, that they had been filed, the plaintiff in this cause, defendant in said cause, duly appealed to the Supreme Court, and prepared and filed an abstract of the record so supposed to be in existence. Thereafter, the plaintiff in said cause, defendant in this, moved this court to strike the evidence contained in the abstract from the files, for the reason that the shorthand reporter's notes had not been certified within 30 days after the rendition of judgment in the cause, and did not constitute a bill of exceptions under the statute. Thereupon, this court sustained said motion, and, upon further motion of the plaintiff in said cause, defendant in this, entered judgment against this plaintiff, defendant in said cause, and against the sureties on his appeal bond, for the amount of the judgment entered in the court below. The plaintiff in this case, defendant in said cause, being thus disposed of in the Supreme Court, returned to the district court in which the cause was tried, and, on the 13th day of January, 1914, filed a petition for a new trial in said court and in said cause, alleging, among other things, that the judgment entered against him was void for fraud practiced by the plaintiff in obtaining the same; that false testimony was given on the trial of said cause in behalf of the plaintiff therein; that, since the trial of said cause, the plaintiff herein has discovered new evidence, which could not have been discovered by reasonable diligence before the trial, which was material to the controversy, and directly controverting the facts relied upon by the plaintiff therein in his testimony, and upon which he secured the judgment, and alleging many irregularities in the trial of the cause, and errors in the instructions of the court. To this petition, the defendant herein, plaintiff in said cause, filed a demurrer. Thereupon, plaintiff in this cause, defendant in said cause, filed an amendment to his petition, setting out the matters now relied upon for a new trial, in addition to the matters hereinbefore referred to. To this, a motion or demurrer was filed by plaintiff in said cause, defendant in this. Thereupon, the defendant in said cause filed a second amendment to his petition, alleging, among other things, that he had been deprived of his right to an appeal by the negligence and carelessness of the reporter and judge in not attaching a certificate, as required by law, to the minutes of the evidence, as hereinbefore set out. A motion or demurrer was again filed to this amendment by the plaintiff in said cause. Thereafter, on the 5th day of October, 1914, the plaintiff herein filed an amended and substituted petition in equity, in which he asks equitable relief against the judgment, and for a new trial. Upon this amended and substituted petition, the cause was tried to the court, and decree entered dismissing the petition, and from this, this plaintiff appeals. This amended and substituted petition recites: That, on the 13th day of August, 1911, the defendant herein commenced an action against the plaintiff herein in the district court of Clarke County, claiming damages for fraud and deceit in the exchange of lands; that, on the 7th day of September, 1911, answer was filed by the defendant; that, upon the issues tendered, the cause was tried to a court and jury, and a verdict returned by the jury against this plaintiff; that this plaintiff filed a motion for a new trial; that this motion was submitted and overruled; that, on the 17th day of January, 1913, judgment was entered against this plaintiff in favor of this defendant for the full amount of the verdict returned; that plaintiff took an appeal in good faith, and believed that he had good grounds for reversing the decision appealed from; that, though he requested the official reporter to do so, the notes of the trial were not filed with the clerk, nor certified to by the reporter and judge within 30 days from the rendition of the judgment; that, by mischance, oversight and mistake, due to the fact that both the trial judge and the official reporter were engaged in official work in other counties, the certifying of the shorthand reporter to the evidence and the record was not made within 30 days from the rendition of the judgment; that, resting in the belief that the reporter had done his duty, and that the shorthand notes were filed as required, within the 30 days, defendant in said cause, plaintiff in this, appealed to the Supreme Court, prepared and filed a full abstract of the proceedings as they appeared in the transcript of the reporter's notes; that thereafter, on the 28th day of September, 1913, the Supreme Court sustained a motion to strike the evidence contained in the abstract from the files, for the reason that the shorthand reporter's record had not been certified within 30 days of the rendition of the judgment, and did not constitute a bill of exceptions; that the Supreme Court sustained this motion, struck out the evidence, and, on motion of the plaintiff in said cause, defendant herein, entered judgment against this plaintiff and the sureties on his appeal bond for the amount of the judgment in the trial court. The plaintiff says that his right of appeal was a valuable one, and he was deprived of it without any fault or negligence on his part; that he was deprived of it, without fault on his part, by oversight and mistake on the part of the trial judge and the official reporter in failing to certify the record within the time required by law, as demanded by the plaintiff; and plaintiff says that he has been deprived of his constitutional right of appeal and review, and has suffered irreparable wrong unless he is relieved by the intervention of a court of equity; that he has proceeded as far as is possible for him to proceed on the law side of the court, and has no adequate remedy at law. It will be noted that the original petitions for a new trial, hereinbefore referred to, were all filed on the law side of the calendar and in the law action, and predicated upon statutory grounds, and filed within a year from the rendition of the judgment. This amended and substituted petition upon which the cause was tried was entitled a petition in equity praying for equitable relief, without the allegation of any statutory ground upon which a law court could grant relief. The appeal in this petition is to the broad, equitable powers of the court to grant relief against a judgment in a law action, and is not predicated upon any statutory ground. The only ground relied upon, in this petition, for a new trial, is the fact that, without fault on the part of the plaintiff, he was...
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Hoffart v. Lindquist & Paget Mortg. Co.
...facie showing of error, or unfairness in the trial, or that there had been a miscarriage of justice. As the court said in Bingman v. Clark, 178 Iowa 1137, 159 N.W. 172: "To say the least it would seem unfair to this defendant, who has obtained a judgment against this plaintiff, to impose up......
- Bingman v. Clark