Howerton v. Augustine

• Decision Date: 19 October 1911
• Citation: 132 N.W. 814,153 Iowa 17
• Parties: HOWERTON v. AUGUSTINE.
• Court: Iowa Supreme Court

153 Iowa 17

132 N.W. 814

HOWERTON

v.AUGUSTINE.

Supreme Court of Iowa.

Oct. 19, 1911.

Appeal from District Court, Mahaska County; Byron W. Preston, Judge.

Action for damages for false representation in the sale of land. There was a verdict and judgment for the plaintiff. The defendant has appealed. Appellee plaintiff challenges the sufficiency of the record for the purpose of an appeal and in an amended abstract denies the preservation of the evidence. Motion to dismiss sustained.H. L. Bump and Burrell & Devitt, for appellant.

Liston McMillen and I. C. Johnson, for appellee.

EVANS, J.

Appellee has filed a motion to dismiss the appeal for want of sufficient record. Such motion has been submitted with the case, and we give our first consideration to it.

The trial below was completed March 5, 1910. On that day an alleged certification of the evidence was signed by the presiding judge and the reporter, and filed by the clerk. The sufficiency of such certification is challenged by the appellee on the ground that the certificate was written in shorthand only. The question presented is, Was it a sufficient compliance with Code, §§ 3675, 3749, 3752, 3753 to attach to the shorthand report of the trial a certificate in shorthand only? Such certificate was later transcribed by the shorthand reporter, and a complete transcript of the entire report of the trial was made by the reporter, and certified to by himself and the presiding judge. But this was not done within the time provided for filing a bill of exceptions by section 3749. The writer hereof inclines to the view that the method of certification adopted should be held as prima facie sufficient, and that it is unduly technical to hold that its shorthand form is fatal thereto. The argument for this view is that such certification furnished a sufficient basis within the statutory time for a later certified translation. Such later certified translation has been made. Granted that the certificate in shorthand form was illegible to the ordinary person, it was no more so than was the entire shorthand report of the trial.

[1] However, the majority of the court is of the opinion, in substance, that shorthand characters are not “writing” within the meaning of the statute, and that a certificate in such form is not a certificate at all within the meaning of the statute. The argument in support of this view is that conclusive identification is the purpose of the certificate and that a certificate in shorthand does not furnish such identification to the ordinary person until after it shall have been translated. There was therefore no certification in this case within the statutory time. The question bears some analogy to that involved in Bank v. Meldrum, 128 Iowa, 694, 105 N. W. 206. The view of the majority is consistent with the holding in that case. The effect of the decision in the cited case, however, was avoided by later legislation.

[2] 2. Appel...