Hammond v. Wolf
| Decision Date | 07 June 1889 |
| Citation | 42 N.W. 778,78 Iowa 227 |
| Parties | HAMMOND v. WOLF. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Wapello county; DELL STUART, Judge.
Action to recover an amount alleged to be due on a promissory note. There was a trial to the court, and a judgment in favor of defendant. The plaintiff appeals.
Wm. McNett and W. S. Coen, for appellant.
E. L. Burton, for appellee.
1. Judgment was rendered by the district court, and the bill of exceptions was made a part of the record, and filed on the third day of December, 1887. The short-hand reporter's original notes of the testimony taken on the trial were duly certified and filed on the 26th day of November, 1887, but the translation of the notes was not certified until the 17th day of June, 1888, and was not filed until the 28th day of September, 1888. The notice of appeal was fully served on the 28th day of May, 1888, and was filed with the clerk on the next day.
The appellee has filed a motion to strike the evidence from the abstract on the ground that it was not duly made a part of the record, for the reason that the translation was not certified and filed within the time required by law. If this were an equitable action for trial by this court de novo, the motion would have to be sustained. Kavalier v. Machula, 41 N. W. Rep. 590. Section 2742 of the Code requires that all evidence offered in the trial of an equitable action be certified by the judge within the time allowed for the appeal of the cause, but no bill of exceptions is required. Code, § 2831, as amended. It has been held that the certificate of a judge who could not read the short-hand notes, would not give them the character of written evidence, and that, since the evidence must be certified within six months from the rendition of the judgment, the translation of the short-hand notes properly certified must be filed within that time. Richards v. Lounesbury, 65 Iowa, 587, 22 N. W. Rep. 687;Merrill v. Bowe, 69 Iowa, 654, 29 N. W. Rep. 766; Kavalier v. Machula, supra. Different rules govern appeals in civil causes not triable in this court de novo. In such cases the bill of exceptions is necessary to preserve exceptions which would not otherwise be a part of the record, and must be settled and filed during the term at which the decision of which complaint is made is rendered. Code, § 2831. An extension of time is provided for, but it cannot be claimed as a matter of right. Section 3777 of the Code provides that the short-hand reporter's original notes of testimony shall be filed in the office of the clerk of the court, and become a part of the record in the case in which they were taken, and that they may be made a part of the bill of exceptions. The practice of incorporating them in skeleton bills of exceptions has been repeatedly sanctioned by this court. McCarthy v. Watrous, 69 Iowa, 264, 28 N. W. Rep. 586;Gardner v. Railway Co., 68 Iowa, 590, 27 N. W. Rep. 768;Hill v. Holloway, 52 Iowa, 678, 3 N. W. Rep. 722. The statute does not, in terms, fix the time within which the shorthand reporter's translation must be filed in such cases. It is evident that it should be so filed before the clerk is required to prepare a transcript of the record for this court. Warbasse v. Card, 74 Iowa, 309, 37 N. W. Rep. 383.
It is insisted by appellee that the appeal must be perfected within six months from the rendition of the judgment, and that when it is done the record should be complete. A distinction has been noticed between taking and perfecting an appeal. Fairburn v. Goldsmith, 56 Iowa, 347, 9 N. W. Rep. 300. Appeals may be taken to this court at any time within six months from the rendition of the judgment or order appealed from. Code, § 3173. An appeal is taken by the service of a notice in writing upon the proper persons. Id. § 3178. Thirty days must intervene between the taking of the appeal and the trial in this court. Id. § 3180. It is evident from an examination of the various provisions of the statute relating to appeals that several months may intervene between the expiration of the six months within which an appeal may be taken and the docketing of the case and the filing of papers in this court. During that time the appeal cannot be said to be perfected, but the delay is permitted by statute. Since there is no provision of law fixing, in terms or by necessary implication, the time within which the translation of the shorthand reporter's notes shall be certified and filed in civil actions at law, we conclude that it is sufficient in any case if done within such time as to permit the submission of the case in this court in the manner, and within the time, fixed by statutory and other rules applicable in such cases. Those rules seem to have been complied with in this case, and the motion to strike the evidence will therefore be overruled.
2. Appellee objects that the abstract does not purport to contain all the evidence. The appeal is designed to present for our consideration the ruling of the court below in rejecting certain evidence. It would have been improper to set out in the abstract evidence not necessary to explain the exceptions taken to such rulings. Code, § 2741, as amended. It is not denied that sufficient for that purpose is contained in the abstract.
3. The note upon which this action was brought is set out in the petition by copy as follows: The answer of defendant is verified, and denies the genuineness of the signature, and denies the making of the note by defendant. On the trial plaintiff introduced evidence tending to prove that the signature was the genuine signature of defendant; that it was made in the presence of plaintiff; that after the petition was drawn the note was lost, and that due and ineffectual search for it had been made. A signature of defendant, admitted by him to be genuine, was introduced in evidence. W. S. Coen, an attorney, then testified that he and Charles Hall had been partners; that plaintiff handed to them a note for collection; that it was dated in September, 1872, was for $191 and some cents, due one day after date, and purported to be signed by Joseph Wolf; that he distinctly recollected handling the note frequently; that he had had considerable experience in comparing handwriting for the purpose of determining the genuineness of signatures, and had paid considerable attention to signatures; that he had seen the signature upon the lost note at least four or five times, and had a recollection of its appearance and character, and that he had examined the signature in evidence, admitted by defendant to be genuine. Mr. Coen was then asked this question: “From your examination of the admitted signature of the defendant in evidence, what is your opinion as to whether the signature of the defendant on the lost note is or is not the genuine signature of the defendant?” Defendant objected to the question “as incompetent, irrelevant, and immaterial, and not the proper way of proving handwriting, and because the signature in question is not in court.” This objection was sustained. Plaintiff then offered to prove by the witness that in his opinion the signature to the lost note, as compared with the signature of defendant admitted to be genuine, was the genuine signature of defendant. To that offer the objection last mentioned was made and sustained. Charles Hall testified that he drew the petition, and had the note before him at that time; that it had then been in their possession several months; that he had had experience in copying and examining handwritings and signatures. He was then asked substantially the same question in regard to his opinion as to the genuineness of defendant's signature on the lost note as had been asked of Coen, to which substantially the same objection was interposed. On that objection the court ruled as follows: “Objection is sustained on the ground that the signature to the note itself is not present in court.” Plaintiff then offered to prove by Hall that in his opinion the signature to the lost note, as compared with the one admitted to be genuine, was defendant's signature, but an objection to the offer was sustained. Exceptions to these rulings were duly taken by plaintiff....
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