Fleming v. Stearns

• Citation: 44 N.W. 376,79 Iowa 256
• Parties: FLEMING v. STEARNS ET AL.
• Decision Date: 01 February 1890
• Court: Iowa Supreme Court

79 Iowa 256

44 N.W. 376

FLEMING

v.STEARNS ET AL.

Supreme Court of Iowa.

Feb. 1, 1890.

Appeal from district court, Polk county; JOSIAH GIVEN, Judge.

Action to recover an amount alleged to be due for brick sold and delivered. There was a trial by jury and a verdict and judgment for plaintiff. The defendants appeal.Henry S. Wilcox, for appellants.

Thos. A. Cheshier, for appellee.

ROBINSON, J.

The petition alleges that on or about the 16th day of October, 1883, the plaintiff sold and delivered to defendants 48,648 brick, for the agreed price of $6.75 per thousand, and that the amount for which they were sold is due and unpaid. The petition also alleges that the debt is due for property obtained under false pretenses, and demands a writ of attachment, which was issued. Defendant D. N. Stearns denies the allegation of the petition, excepting he admits that he purchased of plaintiff during the year 1883 as many bricks as are charged for in the petition, but alleges that he has fully paid for them. Defendant William Stearns admits that his co-defendant purchased of plaintiff the brick mentioned in the petition, but denies having had anything to do with the purchase, and denies all other allegations of the petition. By way of counter-claim he alleges that the writ of attachment was willfully and maliciously sued out and levied upon a judgment for the sum of $355, which was due him. He demands judgment for actual and exemplary damages, for a reasonable attorney's fee, and for costs. In reply to the answer of William Stearns plaintiff alleges that said defendant is estopped from denying liability for the brick in controversy, for that a short time before they were sold and delivered he represented that he and his father, his co-defendant, were partners, and desired to buy brick of plaintiff during the building season of 1883, and that plaintiff believed and relied upon said representations in making the sale. Plaintiff also alleges that he consulted and relied upon the advice of counsel in suing out the writ of attachment. The verdict was against both defendants for the full amount of plaintiff's claim, with interest thereon at 6 per cent. from October 16, 1883, and against William Stearns on his counter-claim. Judgment was rendered in harmony with the verdict.

1. Appellee has filed a motion to strike the evidence from appellant's abstract on the ground that the abstract fails to show that the evidence was preserved by bill of exceptions. In response to that motion appellant has filed a transcript. It appears from the record as it is now presented to us that the evidence and all proceedings had on the trial were duly reported by the official short-hand reporter; that the verdict was returned on the 25th day of May, 1888; that on the same day the judge before whom the cause was tried attached to the reporter's short-hand notes a certificate as follows. “I hereby certify that the foregoing is the official report of the above-entitled case; that it contains, together with the documentary evidence therein referred to, all of the evidence that was offered or introduced on the trial of said cause, and all of the objections and rulings made and exceptions taken; and the said official report in short-hand is hereby made part of the record in the above-entitled cause.” We omit the formal parts of the certificate and the signature. No objection is made to the form of the certificate. The report in short-hand so certified was duly filed in the office of the clerk of the district court on the 26th day of May, 1888. The motion for a new trial was filed two days later, and on the 2d day of June, 1888, the motion was overruled, and judgment was rendered. A translation of the short-hand notes was certified by the short-hand reporter in due form on the 1st day of September, 1888, and on the 26th day of January, 1889, was filed in the office of the clerk of the district court. It is claimed by appellee that, as the district court made no order extending the time for filing a bill of exceptions, the translation of the short-hand notes was filed too late to answer the requirements of the statute, if it were otherwise sufficient, and that the report in short-hand could not in any event take the place of a bill of exceptions. No formal bill of exceptions is required. If a judge attach to the evidence his certificate that it is all that was offered and received on the trial, it is a sufficient compliance with the statute as to the matter certified in actions at law. McCarthy v. Watrous, 69 Iowa, 262, 28 N. W. Rep. 586, and cases therein cited. See, also, Hurlburt v. Fyock, 73 Iowa, 478, 35 N. W. Rep. 482;Hunter v. Railway Co., 41 N. W. Rep. 306. It was held in Ross v. Loomis, 64 Iowa, 433, 20 N. W. Rep. 749, that where the short-hand report is ordered to be made a part of the record, and a certificate of the judge in due form is attached, the evidence was sufficiently preserved. Following that case, and the others cited, we must hold that the short-hand report in this case, with the certificate of the judge, constitute a bill of...