Campbell v. Campbell

• Decision Date: 21 October 1902
• Citation: 91 N.W. 894,118 Iowa 131
• Parties: A. M. CAMPBELL v. L. E. CAMPBELL, Appellant
• Court: Iowa Supreme Court

91 N.W. 894

118 Iowa 131

A. M. CAMPBELL v. L. E. CAMPBELL, Appellant

Supreme Court of Iowa, Des Moines

October 21, 1902

Appeal from Hardin District Court.--HON.S. M. WEAVER, AND HON. J. R WHITAKER, Judges.

ACTION on a written instrument to recover money due thereunder. Defense, payment and the statute of limitations. Trial and judgment for the plaintiff, from which the defendant appealed. After the appeal was taken the plaintiff procured a correction of the record in the district court, from which an appeal was also taken. Both appeals are herein determined upon the request of the appellant.

Affirmed.

Ward & Hayes for appellant.

Albrook & Lundy for appellee.

OPINION

SHERWIN, J.

The reporter's shorthand notes of the trial made it appear that the plaintiff, when a witness in his own behalf, had testified that the obligation sued upon was paid. This does not seem to have been discovered by either party until after a transcript of such evidence had been made, and after such discovery by the appellee the record was corrected. We are well satisfied that the facts justified the correction; for if such a solemn admission on the witness stand had been made, it would hardly have been overlooked by counsel on both sides and by the judge who tried the case, and, of course with such an admission in the record there could be no judgment for the plaintiff. If there was an error in the record of the trial court, there was the proper place to correct it. Stiles v. Botkin's Estate, 30 Iowa 60. See also, Long v. Valleau, 87 Iowa 675, 55 N.W. 31. And, it can hardly be held that, where there is an evident mistake in taking down the testimony of a witness, such mistake may not be corrected by changing the record so that it will show what was in fact said. It is said in Graves v. Clark, 101 Iowa 738, 69 N.W. 1046, that it would be dangerous to permit additions to, or deductions from, the record upon a showing by affidavits that something said was omitted, or that something appearing in the record was not said; but parties to the trial and the witness as well are entitled to have the testimony correctly reported, and where there has been a failure in this respect, and it is an evident mistake, we think it may be corrected on motion supported by affidavits.

The instrument sued on is in the following language "Eldora, Iowa March 10, 1869. Received of Fannie Campbell, by the hand of C. I. Campbell, the sum of one thousand ($ 1,000.00) dollars to place upon interest at ten (10) per cent., payable...