Kiburz v. Jacobs

• Decision Date: 29 January 1898
• Citation: 73 N.W. 1069,104 Iowa 580
• Parties: KIBURZ v. JACOBS.
• Court: Iowa Supreme Court

104 Iowa 580

73 N.W. 1069

KIBURZ

v.JACOBS.

Supreme Court of Iowa.

Jan. 29, 1898.

Appeal from district court, Jones county; W. P. Wolf, Judge.

Action to recover for services rendered and expenses incurred under a written contract set out. Defendant answered, joining issues, and setting up a counterclaim, which counterclaim plaintiff denied. Verdict and judgment were rendered in favor of the plaintiff. Defendant appeals. Affirmed.Welch & Welch, for appellant.

Hicks & Ellison, for appellee.

GIVEN, J.

1. Appellee moves to strike from appellant's abstract all that part purporting to set forth the evidence, and objections and rulings thereon, and also instructions, upon the ground that said matters have not been identified and preserved by bill of exceptions filed within the time fixed by the court. Appellant's abstract does not show when the judgment was rendered, nor that any time was allowed for filing a bill of exceptions; but appellee's additional abstract shows that the judgment was rendered on March 19, 1896; that, by consent, 30 days were allowed to settle and file a bill of exceptions; and that on the 1st day of May, 1896, defendant filed his bill of exceptions. Appellant files the affidavit of one of his counsel to the effect that within the 30 days he prepared the bill of exceptions, and forwarded the same from Monticello, Iowa, to Judge Wolf, at Tipton, for signature and allowance; that same was duly sent by mail by Judge Wolf to F. O. Ellison, attorney for appellee, at Anamosa, within the 30 days, for his approval. Affiant says: “And the delay in filing said bill was occasioned by said Ellison retaining said bill in his possession, or by being detained or delayed in the mail beyond the said thirty days.” He says that Ellison, some time thereafter mailed the bill, without objections, to the clerk, to be filed. Appellant also produces a statement from Judge Wolf, entitled as in the case, June 3, 1896, but which does not appear to have been filed in the district court, in substance as follows: That the bill was prepared and sent to him, was allowed and signed by him, and mailed to F. O. Ellison, attorney for the plaintiff, at Anamosa, within the 30 days, with instructions to notify the judge if the bill was not satisfactory, and, if objected to, to return it, with his objections, and that it was not returned. It is not contended that the bill was filed within the 30 days, nor, indeed, until May 1, 1896; but appellant contends that it was because of the detention of the bill beyond that time by attorney Ellison. Mr. Ellison makes affidavit that he did not receive the bill of exceptions until the 23d day of April, 1896, when he received what purported to be a bill of exceptions, accompanied by a letter from Judge Wolf, which is set out, and which is dated April 21, 1896, and in which Judge Wolf says as follows: “Welch & Welch have sent bill of exceptions for my signature in case of Kiburz vs. Jacobs. I do not remember what entries were made on the docket. I see there is no exception to the judgment of the court, or the verdict. As they did not submit the bill to you, I send it, to be...