O'Brien v. Harrison

• Decision Date: 21 October 1882
• Citation: 13 N.W. 764,59 Iowa 686
• Parties: O'BRIEN v. HARRISON AND OTHERS.
• Court: Iowa Supreme Court

59 Iowa 686

13 N.W. 764

O'BRIEN

v.HARRISON AND OTHERS.^a1

Supreme Court of Iowa.

Filed October 21, 1882.

Appeal from Palo Alto district court.

Soper & Crawford, for appellant.

T. W. Harrison, for appellees.

Supplemental opinion.

BECK, J.

A petition for rehearing has been filed in this case, which, under the statute, has been supported by an oral argument made by defendants' counsel. We have upon the petition re-examined the case, and remain well satisfied with the conclusion and arguments of the foregoing opinion. A brief reference to two points made in the petition for rehearing is proper in order to correct a clerical mistake occurring in our opinion, and to make plain the position that the case is triable de novo in this court.

1. It is stated in the opinion that the deed to Harrison was executed before the decree was rendered under which the sheriff's sale was had. The deed in fact was after the decree. The mistake is unimportant, as Harrison could not be regarded as a good-faith purchaser upon the facts stated, even though he purchased before the decree.

2. Defendants insist that the case is not triable de novo by reason of the following facts: Upon the trial in the district court the plaintiff offered in evidence the printed abstract filed in the court in the case wherein the judgment was rendered upon which the land was sold. The abstract in this case does not set out that abstract, but refers to it as being on file in the court. The defendants, appellees in this case, filed an amended abstract of great length, purporting to set out evidence in the case. It is nowhere insisted, as claimed therein by defendants, that the two abstracts, the original and amended, fail to present all the evidence. The amended abstract contains many records, as executions, returns, etc., besides testimony of witnesses, some of which, it may be presumed, were found in the abstract in the former case. It is the settled rule of the court that when an amended abstract is filed, in the absence of a claim or allegation therein that it does not, with the original abstract, present all the evidence, we will presume that all the evidence is before us. Counsel for defendants cite decisions of this court to the effect that when an abstract shows upon its face that it does not contain all the evidence, we will not try the case de novo. But these decisions were made in cases wherein amended abstracts were not filed. They are therefore not in conflict with our...