Hopkins Fine Stock Co. v. Reid

• Court: Iowa Supreme Court
• Writing for the Court: WATERMAN, J.
• Citation: Hopkins Fine Stock Co. v. Reid, 106 Iowa 78, 75 N.W. 656 (Iowa 1898)
• Decision Date: 27 May 1898
• Parties: HOPKINS FINE STOCK COMPANY, Appellant, v. JAMES REID, Constable

75 N.W. 656

106 Iowa 78

HOPKINS FINE STOCK COMPANY, Appellant, v. JAMES REID, Constable

Supreme Court of Iowa, Des Moines

May 27, 1898

Appeal from Page District Court.--HON. A. B. THORNELL, Judge.

THIS is an action in replevin, which originated in the court of a justice of the peace. The value of the property was fixed in the petition at one hundred and ten dollars. It was taken by appeal to the district court, and was there tried, without the intervention of a jury. From a judgment in defendant's favor, the plaintiff appeals.

Reversed.

J. R Good for appellant.

G. I Miller for appellee.

OPINION

WATERMAN, J.

No objection seems to have been made to the jurisdiction of the justice and no such question is presented here. We are therefore authorized to presume that the parties gave their consent to the trial by the justice. Chesmore v. Barker, 101 Iowa 576, 70 N.W. 701.

II. Appellee moves to strike from the record the bill of exceptions, because not signed or filed in time. The judgment of the district court was rendered April 4, 1896, and, by its terms, one hundred days were given in which to prepare and file a bill of exceptions. The bill of exceptions was signed July 31, 1896, and it was filed a few days later; appellee says August 3, 1896. The abstract is prepared in such a confused and confusing way that we are not able to find in it the exact date. This, however, is immaterial. It was not filed before it was signed, and it was signed eighteen days after the time fixed by the court had expired. The motion to strike will be sustained. Barber v. Scott, 92 Iowa 52, 60 N.W. 497. It appears, however, that the original shorthand notes were certified by the judge and the reporter, and filed April 4, 1896. The transcript of these notes was not filed until July 28th, which was fifteen days after the expiration of the time fixed for the bill of exceptions. If the filing of the original notes, so certified, constitutes or takes the place of a bill of exceptions, then we may consider the case. In Bunyan v. Loftus, 90 Iowa 122, 57 N.W. 685, it was held that the evidence was properly preserved of record, if the shorthand notes certified by the judge and reporter, were filed within the time limited, although the transcript was not filed until the time had elapsed. See, also, to same effect, Fleming v. Stearns, 79 Iowa 256, 44 N.W. 376; Hood v. Railway Co., 95 Iowa 331. Harrison v. Snair, 76 Iowa 558, 41 N.W. 315, seems to conflict with the rule of these cases, but it will be noted that in that case the transcribed notes were never filed.

III. Plaintiff claims possession of the property in question,--certain horses,--under a chattel mortgage executed by one B. J. McKie to one F. Larabe, and by the latter assigned to plaintiff. The claim of defendant is founded on the levy of a general execution issued on a judgment against McKie. The mortgage was made in the state of Missouri, and counsel devote no small portion of their arguments to a discussion of its validity. We need not follow them further than as to a single matter, of which we will presently speak. The trial court held the mortgage valid as to the animals described, and which were in existence at the time the mortgage was made, and gave possession of one horse to plaintiff. Defendant has not appealed, so this finding of the district court must stand. The mortgage, after describing certain horses and mares by color, age, and name, says "and all increase of said mares and the increase of increase." It is admitted that the animals in controversy are the increase of said mares, and their ages, as given in the judgment entry, show that they were foaled since the mortgage was made. The question we have to consider is whether the descriptive clause which we have set out is sufficient to give a lien on...