Harrison v. Snair

• Court: Iowa Supreme Court
• Writing for the Court: BECK
• Citation: Harrison v. Snair, 76 Iowa 558, 41 N.W. 315 (Iowa 1889)
• Decision Date: 19 January 1889
• Parties: HARRISON v. SNAIR.

76 Iowa 558

41 N.W. 315

HARRISON

v.SNAIR.

Supreme Court of Iowa.

Jan. 19, 1889.

Appeal from district court, Union county; R. C. HENRY, Judge.

Action of replevin, brought by W. H. Harrison against Thomas G. Snair. Verdict and judgment for defendant, and plaintiff appeals.H. M. Towner, for appellant.

James G. Buel, for appellee.

BECK, J.

1. The defendant moves the court to strike from the abstract all of the evidence in the case, on the ground that it is not of record in the court below. The defendant, in support of this motion, shows that no translation of the short-hand reporter's notes have been filed in the court below. The short-hand notes were deposited in due time in the court below, though not marked, “Filed.” As to the notes, this is sufficient. But no translation thereof has ever been deposited in the clerk's office. The evidence does not become a part of the record until the short-hand notes, together with a translation thereof, are deposited in the clerk's office, and the evidence thus presented is duly certified by the judge. Lowe v. Lowe, 40 Iowa, 220;McCarthy v. Watrous, 69 Iowa, 260, 28 N. W. Rep. 586;Arts v. Culbertson, 73 Iowa, 14, 34 N. W. Rep. 490;Merrill v. Bowe, 69 Iowa, 654, 29 N. W. Rep. 766;Gibbs v. Buckingham, 48 Iowa, 96;Wadsworth v. Bank, 73 Iowa, 425, 35 N. W. Rep. 504. The motion must be sustained, and the evidence stricken from the abstract.

2. But plaintiff insists that, as there is no denial of the abstract by an amended abstract, showing the true condition of the record, the abstract will be taken as true. But the defendant filed a certificate of the clerk of the district court, showing the fact that no translation of the short-hand notes has been deposited or filed in his office. This certificate is to be regarded as an amended abstract, showing the true condition of the record as to the matter under consideration.

3. The evidence being stricken from the abstract, no questions in the case arising upon the evidence, or in the decision of which the evidence is to be considered, can be decided. All questions involving the sufficiency of the evidence to support the verdict, and the applicability of the instructions to the evidence, are of this character. They include all the questions in the case, with but one exception, which arises upon an instruction pointing out what acts would be in fraud of creditors. A sentence of the instructions informs the jury that a fraud upon a creditor is an act with the...