Gardner v. Burlington, C. R. & N. R. Co.

• Decision Date: 21 April 1886
• Citation: 68 Iowa 588,27 N.W. 768
• Parties: GARDNER v. BURLINGTON, C. R. & N. R. CO.
• Court: Iowa Supreme Court

68 Iowa 588

27 N.W. 768

GARDNER

v.BURLINGTON, C. R. & N. R. CO.

Supreme Court of Iowa.

Filed April 21, 1886.

Appeal from Johnson circuit court.

The plaintiff seeks in this action to recover damages of the defendant, and, as the ground of his claim, he avers, in substance, that while crossing the defendant's railroad track with a team of horses and sled the employes of defendant negligently ran a train of cars against the team and vehicle to which they were attached, and killed one of the horses, seriously injured another, and inflicted upon plaintiff a great personal injury. There was the usual defense, denying the alleged negligence, and averring that the plaintiff has no right to recover, because of his contributory negligence. A trial by jury resulted in a verdict and judgment for plaintiff, and defendant appeals.S. K. Tracy and Boal & Jackson, for appellant, Burlington, C. R. & N. R. Co.

Milton Remley and S. H. Fairall, for appellee, H. M. Gardner.

ROTHROCK, J.

1. Counsel for appellee attack the records in the case, and they move to dismiss the appeal, and to strike the evidence from the abstract, because they claim that it was not preserved by a bill of exceptions. They make a number of points under these motions. One of the objections is that the service of the notice of appeal is in the handwriting of the deputy clerk of the circuit court. To sustain this objection to the record they have caused the original notice of appeal to be deposited in this court with a certificate of the clerk to the effect that the name of the clerk was signed by the deputy. We have repeatedly held that records which are the basis of appeals to this court, if defective or not correct, must be corrected in the court below. The transcript is the authoritative record in this court, and after being certified here it cannot be impeached by certificates of the clerk of the court below, or by any extrinsic evidence. We do not determine whether a deputy-clerk may accept service of a notice of appeal; but see Sanxey v. Iowa City Glass Co., ante, 747, decided at present term. But we hold that the objection is not well taken, because extrinsic evidence is not admissible here to contradict the record.

The only other objection founded on these motions which it appears necessary to refer to is that the bill of exceptions does not point out with sufficient distinctness the evidence to be inserted therein. It is what is known as a “skeleton bill,” in that it directs the clerk to insert the evidence at certain places therein. The reference to the evidence in the bill is as follows: “The plaintiff, in support of the issues, produced and offered the following evidence, contained in the reporter's notes, which were filed in the office of the clerk of the circuit court, a transcript of which is as follows: [clerk will here insert said transcript;] the same being a transcript and translationof the reporter's notes, which transcript is on file in the office of the clerk of said court; to which evidence the defendant objected, which objections were overruled, to which overruling the defendant then duly excepted,--all as appears in the said notes and the transcript thereof, as set out and embodied in this bill of exceptions.” It is then recited in the bill of exceptions that the plaintiff then rested his case, and the defendant introduced his evidence. The defendant's evidence, and the rebutting evidence of the plaintiff, are referred to, pointed out, and identified in the same way. This was sufficient. There was no occasion for the clerk to be mistaken as to what was to be inserted in the bill, and he was not authorized to determine what evidence was in the case. The evidence was as plainly and specifically pointed out as it well could be. It is claimed, however, that the transcript of the reporter's notes was not on file when the bill of exceptions was signed. There is some doubt upon this subject; but the reporter's transcript was on file when the bill of exceptions was filed, and this was sufficient. It is not at all probable that when the clerk came to make out the bill of exceptions in extenso he would insert the evidence in some other case because the reporter's transcript in this case was not on file...