Hall v. Harris
| Decision Date | 20 September 1883 |
| Parties | HALL v. HARRIS ET AL |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.
ACTION in chancery to set aside a deed on the ground that it was made to defraud the creditors of the grantor, to enforce a vendor's lien against the land described in the deed, and to enjoin defendants from conveying and incumbering the premises. There was a decree dismissing plaintiff's petition, from which he appeals.
AFFIRMED.
Smith Carson & Harl, for appellant.
E. A Babcock, Ross & Mayne, for appellee.
I.
The abstract nowhere alleges that it contains all the evidence offered and admitted in the court below. But the certificate of the judge trying the cause, which appears to have been attached to the evidence in the court below, stating that "the foregoing report contains all the evidence," etc., is printed at the end of the abstract. There is no averment, that all the evidence found in this "report" is contained in the abstract. The defendants insist that the cause cannot be tried de novo, and that the decree of the court below must be affirmed.
II. We have time and time again held that, to authorize us to try a cause de novo, the abstract must show that it contains all the evidence offered and introduced in the court below. We have also held that the printing of the certificate of the judge, as is done in this case, without more, will not show that the abstract contains all the evidence offered and admitted. Overholt v. Esmay, 54 Iowa 748, 6 N.W. 140; Casady, Adm'r, v. Spofford, 57 Iowa 237; Conwell v. House et al., 57 Iowa 754; Rice & Son v. Plymouth Co., 53 Iowa 635. It is proper to remark that the case is brought here for trial de novo, and plaintiff claims a trial in that manner.
III. Defendant filed an amended abstract, claiming therein that plaintiff's abstract "is incorrect in many particulars." While correcting one error in the original abstract, the defendants expressly claim that, with the amendment, the case is not fully presented, and all the evidence is not found in the two abstracts. The case is not within the rule of Starr v. City of Burlington, 45 Iowa 87, followed in Cross v. The B. & S.W. R. R. Co., 51 Iowa 683, and Wells v. The B., C. R. & N. R. Co., 56 Iowa 520.
SUPPLEMENTAL OPINION.
I. A petition for rehearing has been filed in this case, which presents some objections to the foregoing opinion that ought to be noticed.
It is not shown in the abstract that it contains all the evidence. The certificate of the judge trying the case, printed in the abstract, is to the effect that the report of the evidence contains all the testimony introduced or offered at the trial. Counsel claim that the certificate should be understood as applying to the contents of the abstract. But this cannot be, for the district judge does not pretend to certify to the abstract, and doubtless never saw it. While the report he certifies may be complete, it does not follow that an abstract prepared by counsel in the case contains all the evidence.
II. The amended abstract does not purport to present any evidence in the case. It only attempts to correct a part of the errors. The corrections made pertain to the form of the decree in the court below. This amended abstract, under the cases cited in the foregoing opinion, cannot be...
To continue reading
Request your trial