Christenson v. Cent. Iowa Ry. Co.

• Decision Date: 17 October 1883
• Citation: 63 Iowa 703,17 N.W. 33
• Parties: CHRISTENSON v. CENTRAL IOWA RY. CO.
• Court: Iowa Supreme Court

63 Iowa 703

17 N.W. 33

CHRISTENSON

v.CENTRAL IOWA RY. CO.

Supreme Court of Iowa.

Filed October 17, 1883.

Appeal from Franklin circuit court.

This is an action to recover damages for the burning of plaintiff's grain by a fire set out by a locomotive upon defendant's road. There was a jury trial, resulting in a verdict and judgment for the plaintiff. The defendant appeals.H. E. J. Boardman, J. H. Blair, and A. C. Daly, for appellant.

Dow & Gilger, for appellee.

DAY, C. J.

1. The appellee filed and submitted with this case a motion to strike the appellant's bill of exceptions from the files, upon the ground that the appellant failed to serve a copy of his bill of exceptions upon the attorney of appellee, as required by the rule of court. A rule of court in the district in which the cause was tried provides as follows: “Bills of exceptions may be settled after the adjournment of the term, unless objection be made and entered of record in term, and without such objection the parties will be presumed conclusively to consent thereto. Within 30 days after the adjournment the party excepting shall prepare his bill, and serve a copy thereof upon the attorney of the opposite party, who shall be deemed to consent to the correctness of the same, unless within 10 days thereafter he shall serve amendments upon the attorney from whom he received a copy of the bill, and within ten days thereafter said bill of exceptions shall be settled by the judge, unless a different manner be agreed to in writing.”

It is clearly shown that the appellant did not comply with this rule, and did not at any time serve a copy of the bill of exceptions upon the attorney of the appellee. It appears that the appellee consented that the bill of exceptions might be settled and filed within 90 days from the adjournment of the term. The effect of this agreement was to extend the time within which the copy of the bill of exceptions should be served upon appellee's attorney, and not to waive such service altogether. Indeed, we are authorized to conclude that appellee's attorney consented to such extension of time in reliance upon the rule, and with the expectation that he would have an opportunity to examine and pass upon the correctness of the bill before it would be presented to the judge for his signature. The rule is a very reasonable and proper one, and appellant had no right to disregard or ignore it. It cannot be expected that in the multiform business coming before a ...