First Nat. Bank v. Eichmeier

• Decision Date: 20 November 1911
• Citation: 133 N.W. 454,153 Iowa 154
• Parties: FIRST NATIONAL BANK OF WILMOT, MINNESOTA, Appellant, v. A. EICHMEIER and KATIE EICHMEIER
• Court: Iowa Supreme Court

133 N.W. 454

153 Iowa 154

FIRST NATIONAL BANK OF WILMOT, MINNESOTA, Appellant, v. A. EICHMEIER and KATIE EICHMEIER

Supreme Court of Iowa, Des Moines

November 20, 1911

Appeal from Franklin District Court.--HON. CHAS. E. ALBROOK, Judge.

SUIT to subject certain land to the payment of the indebtedness of A Eichmeier. The petition was dismissed. Plaintiff appeals. Affirmed on the merits, and order denying application to correct record reversed.

On appeal from an order denying the application to correct the record, reversed. On the merits, affirmed.

Stipp & Perry and David Evans, for appellant.

John M Hemingway and A. J. Daley, for appellees.

OPINION

LADD, J.

Shortly after the death of Herman Eichmeier, the defendant, A. Eichmeier, a son, conveyed his one-eighth interest in four hundred acres of land, in Franklin county left by deceased and subject to the life estate of the widow, if she take under the will, or, if she refuse, then to her dower therein, to Maud E. Daley. She immediately deeded the same to the defendant, Katie Eichmeier, wife of A. Eichmeier. At that time, the latter was largely indebted to the First National Bank of Wilmot, Minn., and to the Adrian State Bank of the same state, and in this suit it is sought to establish a portion of the indebtedness against the debtor, and subject the property conveyed to its payment. Several preliminary matters may be disposed of before considering the merits of the controversy.

I. The appellee filed an amendment to the abstract, asserting that the abstract did not completely and faithfully reproduce the record, denying that it contained all the evidence essential to a proper understanding of the case, and saying that appellee, Katie Eichmeier, "to correct the said errors amends said abstract to show the facts in accordance with the truth and the record in the following particulars." Here follow several corrections of the pleadings and amendments to the evidence of several witnesses as abstracted. It then denies that notice of appeal was ever served on defendant, A Eichmeier, says that the abstract and amendment thereto do not contain all the evidence, and "especially states and shows that the testimony taken and offered during the trial of the case was never properly certified or properly made a matter of record, and denies that the evidence is preserved as by law required," and asserts that the certificate attached to the shorthand notes of the official reporter was never dated, entitled, or signed by him, and that the transcript of the evidence was not filed within six months after the entry of judgment.

Appellant moves that this amendment be stricken, because filed too late, and, subject to ruling thereon, that the portion thereof denying the service of the notice of appeal and preservation of the evidence as of record be stricken. The delay in filing the amendment was due to no fault on the part of appellee, and as no prejudice resulted therefrom, it ought not to be stricken.

It appears that the notice of appeal was directed to both defendants, and service thereof was acknowledged by local counsel for Katie Eichmeier, as "attorney for defendants." Though A. Eichmeier did not answer, the judgment entry recited that "defendant, A. Eichmeier, having appeared at such hearing, both by counsel and in person," a personal judgment for $ 4,527.20 was entered against him. As against the mere denial, unsupported by affidavit or otherwise, that counsel acknowledging service was attorney for A. Eichmeier, the record must be regarded as conclusive to the contrary, and the service regarded as sufficient.

Nor do we think the circumstances that appellee filed an amendment to the abstract, "to show the facts according to the truth and the record," estop her from denying therein that the evidence was ever properly preserved as a part of the record. A party is not required to waive the contention that the evidence has been duly certified, in order to amend the abstract, or vice versa, but may both amend and deny, and, if the latter is unavailing, enjoy the advantage of having the omitted testimony before the court. True, something to the contrary was said in Conners v. Railway, 74 Iowa 383, but taken back in Hershey v. Nyenhuis, 103 Iowa 195, 72 N.W. 510. In Sarvis v. Caster, 116 Iowa 707, 89 N.W. 84, the amendment to the abstract asserted that "the following amendments are a part of the record," and it was said that if a part of the record the evidence set out could only become such by timely certification. In Doyle v. Duckworth, 149 Iowa 623, 129 N.W. 59, the decisions are reviewed, and therefrom it plainly appears that in amending the abstract appellee does not waive objections to defects in the alleged preservation of the record, but may amend, subject to the ruling on a denial that the evidence has ever been filed or properly certified. The motion is overruled.

II. The transcript was not filed within six months after the entry of judgment, and appellee moves that the evidence be stricken from the abstract, for that the certificate attached to the report of the trial in shorthand, headed "In the district court in and for Story county," was neither entitled nor dated, and, though signed by the trial judge, was never signed by the official reporter. This appearing to be true, appellant moved that the certificates be amended by (1) inserting November 23, 1909, as the date thereof; (2) by adding to the reporter's certificate the name of the official reporter, who took the evidence down in shorthand; and (3) that said certificates be amended so as to conform to those attached to the transcript, and purporting to be copies of certificates to the shorthand notes. This was on the ground that the reporter, after preparing the transcript, had inadvertently substituted the certificates now attached thereto for those so attached at the time the notes were filed with the clerk of the district court. Subsequently the motion was amended, so as to pray that an order be entered, finding that the shorthand notes were duly certified when filed on November 23, 1909. The defendant, Katie Eichmeier, moved to dismiss the motion because filed more than a year after the entry of judgment, and otherwise resisted it. The cause was redocketed, and hearing had, at the conclusion of which the application to correct the record was denied. An appeal from the ruling was taken, and, aside from the contention that the application was not timely, presents an issue of fact only. As this is not a proceeding to correct any error or omission of the clerk, or irregularity in obtaining judgment, section 4093 of the Code has no application. The amendment of a defective record is not sought, but the establishment of the record as it originally existed. This the court in a proper case may do at any time. 19 Am. & Eng. Ency. of Law (2d ed.), 556.

Were the shorthand notes properly certified when filed, November 23, 1909? No one, save the reporter, appears to have examined them before their return to the clerk of court after the preparation of the transcript. At that time, as previously stated, the printed certificate forms for Story county, without blanks filled, save the signature of the judge, were attached to said notes, but to the transcript thereof were attached what purported to be copies of the certificates, signed by trial judge and official reporter, bearing date November 23, 1909, with blanks filled and headed "In the district court in and for Franklin county," and a certificate of the reporter that these were exact copies of the certificates attached to the shorthand notes.

The reporter testified that, "After or during the time I made this transcript I looked to see whether the certificate was attached to the shorthand notes. There was a certificate attached. I made a copy thereof. I attached the copy to the certificate which I made here (referring to transcript). The copy is made on a blank attached to the transcript." He then explained that by "certificate" he meant those of the reporter and judge, printed on a single sheet of paper, and with blanks filled by typewriter, and proceeded: "I made the translation of these shorthand notes in Ames, at my home, in my room, which I call my den or office. I personally transcribed the shorthand notes. What I did in this particular case was as follows: I have a table somewhat larger than that (pointing), and lower, and during the summer time I prepare myself, as it were, for a sort of summer's campaign of work, and I take my shorthand notes and lay them face down in a box. I usually use a typewriter paper box, and then I take out this brad here (indicating), and as fast as a sheet is completed I lay it in the box, or lay it back over the box, over the other way, and so on; and when the case is completed I put the notes together again. I reassemble the pages. Then I open my closet, where I have a shelf, and throw it up there and proceed with the next case. Each case takes its turn in that way. It is my recollection that in this case I separated the pages of the shorthand notes."

He testified further that he carried printed blank forms, headed "In the district court in and for Story county," in his grip with him to the several counties, and sometimes scratched out "Story" and inserted the name of the county where the action was being tried, and used these blanks; that the clerk of the district court of Franklin county kept printed certificates suitable for that county that he had left the notes on the shelf, called for by defendant's counsel, and subsequently returned them to the clerk; that he had Story county blanks in his office at Ames, and also had had blanks signed by the trial judge; and continued: "I remember of making a copy of those--a copy of the...