Hahn v. Miller

• Decision Date: 07 December 1882
• Parties: HAHN v. MILLER.
• Court: Iowa Supreme Court

60 Iowa 96

14 N.W. 119

HAHN

v.MILLER.

Supreme Court of Iowa.

Filed December 7, 1882.

Appeal from Muscatine district court.

Action at law to recover damages resulting from a nuisance, and asking for an abatement thereof under Code, § 3331. There was a judgment upon a verdict for defendant. Plaintiff appeals.D. C. Cloud, for appellant.

J. Carskaddan and Hoffman, Pickler & Brown, for appellee.

BECK, J.

1. Defendant moves to strike from the record and abstract the bill of exceptions, upon the ground that it was not filed in the district court and made a part of the record within the time required by law. It is shown by the abstract that judgment was rendered in the court below on the eighteenth day of May, 1881, and the plaintiff was allowed 60 days in which to settle the bill of exceptions. It is made to appear, by a certificate of the clerk, that the district court adjourned on the twenty-first of the same month. The bill of exceptions was signed by the judge on the fifteenth, and filed on the twenty-second day of July following. The filing, it will be observed, was after the time prescribed by the court “to settle” the bill of exceptions. Code, § 2831, requires “a bill of exceptions to be filed during the term, or within such time thereafter as the court may fix; but in no event shall the time extend more than 30 days beyond the expiration of the term, except by consent of the parties or by order of the judge.” The requirements of this statute are absolute, and we possess no authority to disregard them. The statute requires the bill of exceptions to be filed within the time prescribed by the order of the court, or agreement of the parties. Before filing, it must be settled. It is not unreasonable, we think, to hold that extension of time for settling a bill of exceptions would extend correspondingly the time for filing. If this be so, defendant had the 60 days in which to file the exceptions, but no longer; if it be not so, time was not extended beyond the term. In either view, the bill of exceptions was not filed in time. It must, therefore, be stricken from the record. See Lloyd v. Beadle, 43 Iowa, 659;Lynch v. Kennedy, 42 Iowa, 220;St. John v. Wallace, 25 Iowa, 21.

Bennett v. Davis, Morris, 363; Humphrey v. Burge, 1 G. Greene, 223;Claggett v. Gray, 1 Iowa, 19; and Jones v. Hockman, 12 Iowa, 101, were decided under statutes prescribing the time within which bills of exceptions should be allowed and filed. These statutes differ from the one now in force. See Rev. St. 1843, (Blue Book,) p. 472, § 19; Code 1851, §§ 1805, 1806; Revision 1860, § 3106.

2. The jury, after the case was submitted to them, sent a written request to the court to the effect that the reporter be permitted to read to them from his notes the testimony of certain witnesses. The record shows that the parties consented that “the reporter should read such portions of the testimony as the jury desired.” Thereupon the reporter did go before the jury and read the minutes of such portions of the testimony as he was requested to read, and which he thought were in response to the questions asked him by the jury. The defendants complained of the action of the reporter, which was one of the grounds for a motion for a new trial. The record shows that the reporter proceeded within the spirit of the agreement of the parties under which he acted. The defendants, having consented to these proceedings, cannot now complain of them.

3. The jury were taken to view the locus in quo. In the motion for a new trial, plaintiff complains of misbehavior of the defendant, alleging that he rode in the sleigh with the jury upon their return, and pointed out the course of a creek, and that he offered, in the presence of the jury, to have a witness point out the premises, which plaintiff's counsel declined. The evidence upon the motion fails to show anything further than that defendant rode with the the jury and counsel on both...