Howe & Co. v. Jones
| Decision Date | 24 April 1885 |
| Citation | 23 N.W. 376,66 Iowa 156 |
| Parties | HOWE & CO. ET AL. v. JONES, DEFENDANT, AND BINFORD ET AL., INTERVENORS |
| Court | Iowa Supreme Court |
Appeal from Marshall District Court.
THIS is an appeal by the intervenors from an order of the district court, approving the final report of a receiver appointed in the main case, and allowing his account.
REVERSED.
Caswell & Meeker, for appellants.
H. E J. Boardman, for receiver.
The plaintiffs each recovered a judgment against Binford Bros. in the district court of Marshall county. Executions were issued on each of these judgments, and H. E. J. Boardman was garnished thereon. He answered that he had in his possession certain notes and mortgages belonging to Binford Bros Plaintiffs then instituted this proceeding, making E. R Jones, the clerk of the district court, defendant. They alleged in their petition that, in a certain cause between Binford Bros. and Boardman, the garnishee, in which the ownership of said notes and mortgages referred to was in controversy, the clerk was ordered to deliver the same to Binford Bros., and that this would be done unless prevented by the order of the court; and that the Binfords were insolvent, and that some of said notes were worthless, and others were likely to become uncollectible, and others were about to be barred by the statute of limitations, and they prayed that a receiver be appointed to take charge of said notes and collect the same. The petition was presented to the judge of the district court in vacation, and he thereupon made an order appointing Boardman receiver of said property, and directing him to take charge of said notes and mortgages, and collect the same. At a subsequent term of the court the intervenors filed their petitions in intervention, alleging that they were the owners of said notes and mortgages by virtue of certain assignments from Binford Bros. They also filed a motion for the removal of the receiver.
The cause has twice before been in this court. On the first appeal it was determined by this court that the intervenors had established their right to the property in controversy, and that the appointment of the receiver was without authority; and it was ordered that a procedendo issue, directing the district court to enter a decree establishing the rights of the intervenors in the property, setting aside the order appointing the receiver, and directing him to pay over to the clerk of that court all moneys and property which he had received by virtue of the appointment, and that the same be delivered to the intervenors. See Howe v. Jones, 57 Iowa 130, 8 N.W. 451. The receiver was not a party to this appeal, and when the cause was remanded he filed a petition setting up the fact of his appointment, and that he had in good faith discharged the duties of receiver thereunder, and that he had, before the appeal was taken, in obedience to the order appealed from, paid over to the plaintiffs the amount of their judgments. The plaintiffs also filed a supplemental petition, in which they allege the same facts, and also that the receiver had expended a large amount in services and money in performing the duties of the appointment; and they asked that he be reimbursed therefor out of the funds in his hands, and that judgment be entered against them for the amounts which they had actually received from the receiver. The district court struck these petitions from the files, and entered a decree as directed by the procedendo. The receiver appealed from this order, and on that appeal it was held by this court that, if the payments by the receiver to the plaintiffs were made in good faith, he could not be required to repay the money so paid, and that he was entitled to show the circumstances under which the payments were made. See How v. Jones, 60 Iowa 70, 14 N.W. 193.
When the cause was remanded after this decision, the receiver filed an amendment to his final report, in which he showed that he had collected the sum of $ 1,060.76, and that he had paid plaintiffs, Geo. M. Howe & Co., $ 714.34, and Green & Co. $ 148.11, and he claimed $ 345.06 on account of costs paid out by him and for services as receiver, and attorney's fees in making these collections and in prosecuting his appeal to this court. The order appealed from approves this report, and allows the receiver credit for each item for which credit is claimed in the report. It also gave the intervenors judgment against Howe & Co. and Green & Co. for the amounts paid to them as shown by the report. It also taxes the costs of the trial to the intervenors.
I. The oral testimony offered by the parties on the trial was taken down at the time in short-hand by the reporter, and his short-hand notes were filed with the clerk at the close of the trial. Certain documentary evidence was also offered, and the separate documents offered were marked by the reporter. Some months after the trial the reporter extended his short-hand notes, and the judge who tried the case indorsed thereon his certificate that it contained all the oral evidence offered or introduced on the trial; also that the documents identified by the reporter contained all the documentary evidence offered or introduced by the parties. The intervenors filed what they claim is a full abstract of all the evidence in the case. They have also filed the extension of the oral evidence made by the reporter and certified by the judge; but they have not filed the transcript of the documentary evidence. The appellee filed an amended abstract, making numerous corrections in appellant's abstract, and in which he denies that all the evidence was contained in the two abstracts. Appellants then filed an admission of the greater part of the amendments made by appellee, and a denial of the others. Appellee filed a motion to strike out of appellant's abstract what purports to be the evidence in the case, for the reason that the evidence was not taken in writing, nor ordered so taken, nor was it preserved by bill of exceptions, and no transcript had been filed. This motion is overruled. The cause was tried as an equitable action, and no order by the court that it be tried on written evidence is required by the statute now in force. See section 2742, McClain's Statutes. All that is required is that the evidence be in fact taken down in writing and certified by the judge, and what was done in this case is the equivalent of that. See Ross v. Loomis, 64 Iowa 432, 20 N.W. 749.
The oral evidence is properly before us, and in the certificate of the judge we have the evidence required by the statute that the record contains all the oral evidence introduced on the trial. But we can try the case de novo only in case we have before us all the evidence of every character which was introduced in the court below, (Krapfel v Pfiffner, 24 Iowa 176; State v. Orwig, 27 Iowa 528;) and in the absence of a transcript of the documentary...
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