Dwyer v. Rock

• Decision Date: 10 October 1901
• Citation: 115 Iowa 722,87 N.W. 495
• Parties: DWYER v. ROCK ET AL.
• Court: Iowa Supreme Court

115 Iowa 722

87 N.W. 495

DWYER

v.ROCK ET AL.

Supreme Court of Iowa.

Oct. 10, 1901.

Appeal from district court, Iowa county; M. J. Wade, Judge.

Action to foreclose a mortgage, executed by defendant Rock. The other defendants were made parties, for the purpose of having their interests declared inferior to the claim of plaintiff. Coakley and other defendants and interveners filed a cross petition against Thomas, Lortz, and Keegan, alleging that a pretended mortgage, originally executed by the defendant Rock to the Farmers' Loan & Trust Company, and by it assigned to Thomas, and by Thomas to Lortz and Keegan, was executed in fraud of said Coakley and other creditors of said Rock, and was without consideration, and that said Thomas, Lortz, and Keegan took the same by transfer without consideration, and with knowledge of its fraudulent character. With reference to the issues raised on this cross petition, the lower court found that Lortz and Keegan held the Farmers' Loan & Trust Company mortgage subject to the claims of Coakley and other defendants and interveners. Thomas, Lortz, and Keegan appeal. Affirmed.C. C. Cole and Thomas & Thomas, for appellants.

Thos. Stapleton, R. W. Pugh, and J. M. Dower, for appellee.

McCLAIN, J.

There are motions submitted with the case to dismiss the appeal, on the ground that the appeal was not perfected within six months after the rendition of the decree, and to strike the evidence from the record, for the reason that the translation of the shorthand notes was not certified by the judge and the reporter, and a transcript thereof filed within six months after the decree, as required by Code, § 3652. Our ruling on the latter of these motions will dispose of the case. The transcript of the reporter's notes was not filed until more than six months from the rendition and entry of the final decree.

It is well settled that under the statutory provisions in force prior to the adoption of the present Code, this court could not try an equity case de novo which had been tried in the lower court on oral evidence, unless the evidence was taken down in writing, and certified by the judge within six months after the decree. While a taking down of the evidence in shorthand was recognized as proper, it was required that either the translation of the shorthand notes or the notes themselves be certified by the judge, and in either case the translation, either certified by the judge or by the reporter, showing the ...