Cassady v. Spofford

• Decision Date: 08 December 1881
• Citation: 10 N.W. 661,57 Iowa 237
• Parties: CASSADY v. SPOFFORD ET AL
• Court: Iowa Supreme Court

10 N.W. 661

57 Iowa 237

CASSADY v. SPOFFORD ET AL

Supreme Court of Iowa, Des Moines

December 8, 1881

Appeal from Polk Circuit Court.

ACTION in chancery to foreclose a contract for the sale of certain city lots. There was a decree for plaintiff; a part of the defendants appeal.

AFFIRMED.

R. G Orwig, for appellants.

Williamson & Kavanaugh, and Phillips, Goode & Phillips, for appellees.

OPINION

BECK J.

I.

The pleadings show that the contract, which is the foundation of the action, provides that upon certain payments being made the plaintiff shall execute to defendant Spofford, with whom the contract was made, a bond for the conveyance of the property "in such parcels" as he may desire. Spofford sold the lots or parts of the lots to the other defendants, who in a cross-petition ask that conveyances be made to each for the lot purchased by him. The decree of the court below provides for the payment, within a time fixed, by the defendants who purchased of Spofford, and that the lots of the parties making default in the payment shall be first sold. Other provisions of the decree need not be recited. One of the defendants does not join in the appeal.

II. The abstract upon which the case is submitted fails to show that it contained all of the evidence. We cannot, therefore, try the cause anew. Counsel for appellants prints in his argument in reply the certificate of the judge trying the case which, it is said, is attached to the evidence transmitted to this court. But this fails to aid appellants as it is not shown that all of the evidence is presented in the abstract. In this condition of the case we cannot enter upon an examination of its merits.

III. Appellants file assignments of errors. One of the errors complained of is based upon the overruling of a demurrer by two of the defendants to the cross-petition of another defendant who does not appeal. But this error is not pressed in the argument of appellants. It must, therefore, be regarded as waived. The other errors assigned all assail the decree of the court below upon grounds which, in effect, deny that it is supported by the testimony. But all the evidence, as we have seen, is not presented in the abstract. If the cause is reviewable upon errors assigned, the appellants, for these reasons are not entitled to such a trial.

IV. The plaintiff complains of the decree. But as he has not appealed he can urge no objection to the decision...