Bunyan v. Loftus

• Decision Date: 31 January 1894
• Parties: BUNYAN v. LOFTUS ET AL.
• Court: Iowa Supreme Court

90 Iowa 122

57 N.W. 685

BUNYAN

v.LOFTUS ET AL.

Supreme Court of Iowa.

Jan. 31, 1894.

Appeal from district court, Lee county; J. M. Casey, Judge.

Action for damages resulting to plaintiff from the sale of intoxicating liquors to her husband.W. J. Roberts, for appellants.

Craig, McCrary & Craig and J. G. Garretson, for appellee.

KINNE, J.

1. Plaintiff sues for the sum of $5,000 damages, which she claims to have sustained by reason of the sale of intoxicating liquors to her husband. It is alleged that the defendant Roger Loftus was the owner of the premises in which defendant Martin operated his saloon, and sold the liquors, and had full knowledge of said illegal sales of liquor. Plaintiff asks that the judgment be made a lien upon the real estate thus used. Defendants denied every allegation in the petition. The cause was tried to a jury, and a verdict returned for $1,000, on which judgment was entered. Defendants appeal.

2. Appellee files a motion to strike the evidence, on the ground that it was never preserved by bill of exceptions or otherwise. In a stipulation filed in this court by the parties it is agreed “that the official reporter's transcript of the original shorthand notes filed in the court below on June 4, 1892, certified by the clerk of the court below that it is such transcript, may be filed in this court as the only transcript required to be filed by appellee under its denial of appellants' abstract, appellee merely intending to question the correctness of the record as to the evidence in the cause.” It is claimed that by this stipulation appellee is precluded from raising the question as to whether the evidence has been properly preserved. We do not think that is a proper construction of the stipulation. In the absence of this stipulation, the appellants would have been required to have the clerk of the district court make a transcript of the translation of the reporter's notes, and to have filed it in this court. The only effect of the stipulation was to dispense with that, and in lieu thereof to permit the translation of the notes made by the reporter to be filed in this court, after being certified by the clerk as being correct. Leaving out of consideration, for the time being, the effect of the order of the court giving time to settle a bill of exceptions, and appellants' failure to act thereunder, was the evidence properly preserved? We need not set out the certificates of the reporter and judge. Both certified to the notes, and fully identified them as being the notes taken by the official reporter on the trial of this case in the district court. The only objection now raised, as we understand it, is that it is claimed that the judge's certificate is insufficient because it contains no direction expressly making the notes a part of the record. No such direction was necessary. The statute provides that “the original notes of any testimony taken in any case shall be filed in the office of the clerk of the court and become a part of the record in said case.” Chapter 195, § 2, Acts 18th Gen. Assem. If the shorthand notes are properly certified by the reporter and judge, and are filed within the proper time, they become a part of the record by virtue of the statutory provision above quoted, and without a special direction to that effect by the judge in his certificate. Cases are cited in which the judge's certificate expressly directed that the evidence certified be made a part of the record, (Hurlburt v. Fyock, 73 Iowa, 477, 35 N. W. 482;Fleming v. Stearns, 79 Iowa, 256, 44 N. W. 376;) but it was not held in these cases that such a direction on part of the judge was necessary. In Runge v. Hahn, 75 Iowa, 735, 38 N. W. 389, Reed, J., says: “The certificate of the judge, when it properly identifies the evidence, has the effect to make it part of the record. It is not essential * * * that it contain an express declaration or order making the evidence part of the record, but that result follows when it identifies the different items of evidence offered and introduced on the trial, and is signed in due time.” The language above quoted has no reference to the time of filing the translation of the notes. We come, then, to the consideration of the question as to the effect under the circumstances of failing to settle a bill of exceptions within the time ordered by the court. The shorthand notes, certified as we have stated, were filed March 23, 1892. The motion for a new trial was overruled April 2, 1892, and at that time the court ordered that the bill of exceptions be settled by May 1, 1892. No bill of exceptions was made or settled. The translation of the reporter's notes was filed June 4, 1892. There was no certificate of the judge to the translation of the notes. Now, the translation of the shorthand notes was not filed until long after the time allowed in which to settle a bill of exceptions. Section 2831 of the Code provides that bills of exceptions must be filed during the term, “or within such time thereafter as the court may fix; but in no event shall the time extend more than thirty days beyond the expiration of the term, except by consent of parties or by order of the judge.” We have held that no time is fixed by statute within which the transcript in a law action of the reporter's notes must be filed, but it will suffice if it is filed within the time a transcript is required to be made by the clerk. Warbasse v. Card, 74 Iowa, 309, 37 N. W. 383;Hammond v. Wolf, 78 Iowa, 229, 42 N. W. 778;Fleming v. Stearns, 79 Iowa, 259, 44 N. W. 376. In McCarthy v. Watrous, 69 Iowa, 260, 28 N. W. 586, a law action, the shorthand notes, certified only by the reporter, were filed at the conclusion of the trial, but the transcript of them was not filed until long after the time given in which to settle a bill of exceptions. To this transcript there...