Harvey v. Wieland

• Decision Date: 05 February 1902
• Parties: J. E. HARVEY, Appellant, v. J. J. WIELAND
• Court: Iowa Supreme Court

88 N.W. 1077

115 Iowa 564

J. E. HARVEY, Appellant, v. J. J. WIELAND

Supreme Court of Iowa, Des Moines

February 5, 1902

Appeal from Carroll District Court.--HON. S. M. ELWOOD, Judge.

ACTION to recover rent. Trial to the court, and judgment for the defendant. The plaintiff appeals.

Reversed.

Geo. W Bowen for appellant.

No appearance for appellee.

OPINION

SHERWIN, J.

There is a written lease of the premises in this case, but a revenue stamp was not placed thereon and canceled when it was executed, as required by the Act of Congress of June 13, 1898 (30 Stat. 461). Objection was made to the lease when offered in evidence for this reason. The proper stamp was then placed thereon and canceled by the assignee thereof, whereupon the lease was admitted in evidence. There is nothing in the court's finding indicating the ground on which judgment for the defendant was based, but we take it to have been based on the failure to stamp the instrument when executed. Many cases have been decided by this court in which the question before us has been determined and decided under former revenue acts of a similar character, but none of these cases are referred to in the argument presented here; hence we are without the help of counsel in applying them to the case at bar. It is claimed by the appellant that the act in question does not apply to evidence offered in a state court but we have repeatedly held that similar ones did so apply. City of Muscatine v. Sterneman, 30 Iowa 526, and cases therein cited. In Mitchell v. Insurance Co., 32 Iowa 421, we held that the failure to stamp an instrument did not render it invalid, in the absence of evidence of intent to defraud the government by the omission, and that such an instrument was properly admitted in evidence, where no such intent was shown. This case was followed in Ricord v. Jones, 33 Iowa 26, and in Ogden v. Forney, 33 Iowa 205. It was held in the Ricord Case that the burden of proof was on the party relying on the failure to so stamp. There is no evidence of such an intent in this case, and the judgment, for this reason alone, should be reversed. Cassidy v. St. Germain 22 R.I. 53, (46 A. 35). Moreover, we are of opinion that the stamping of the lease before it was introduced in evidence would remove the objection to it in this case. State v. Way, 15 Iowa 596. And see note on the subject generally in Knox v. Rossi, 25 Nev. 96, (48 L. R. A. 305 (s. c. 57 P....