King v. Barber
| Decision Date | 17 October 1883 |
| Parties | KING v. BARBER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Lee circuit court.
Action at law. Judgment for the plaintiff, and defendant appeals.D. N. Sprague, for appellant.
Geo. F. Hatch and Hagerman, McCrary & Hagerman, for appellee.
In June, 1873, Scott Howell was an attorney at law. The defendant employed him to commence an action against Bower, or Bower & Bradley. There was evidence tending to show there was a special contract made as to the compensation to be paid Howell. The latter commenced the action. On the first day of July thereafter, J. G. Anderson entered into partnership with Howell for the period of three years. During the continuance of the partnership the firm attended the litigation under and by virtue of the arrangement with Howell. During the partnership an action was brought, in which the defendant intervened, and in which the firm acted as his attorneys; but whether this litigation was included in the special contract made with Howell was a controverted question. After the dissolution of the firm Anderson attended to the litigation, and so did Howell. There was evidence tending to show that Anderson did not have knowledge of the special contract made with Howell until some time after the dissolution, and that he repudiated it when the same came to his knowledge. The evidence also tended to show that the defendant had knowledge of the dissolution, and that he corresponded with Anderson in relation to the litigation. This action was brought to recover for the services of Anderson rendered subsequent to the dissolution. The errors assigned and discussed by counsel relate to the instructions given and refused. The appellee insists these errors cannot be considered, because the record fails to show the instructions given are all before us, and because instructions are not sufficientiy identified by the bill of exceptions. These questions will be first considered.
1. The bill of exceptions is a “skeleton” bill, and among other things states: “After the introduction of said testimony counsel argued the case to the jury, and the court gave the following instruction on his own motion, to-wit, (here insert instructions;) to the giving of which instructions, and each and every one of the said instructions, defendant there and then excepted, and especially excepts to instructions Nos. 4 and 6, because,” etc. We understand the exceptions were taken at the time the instructions were given, and that this appears from the bill of exceptions. It further appears the court gave certain instructions which were directed to be inserted in the bill of exceptions. It is the duty of the clerk to file and preserve the instructions, and he can and must determine, when he makes out the transcript, what instructions he must insert therein as having been given by the court. He was directed to insert in the “skeleton” bill of exceptions the instructions so given. This we understand to mean all instructions given. This has been done, and such instructions are in the record. All the instructions given are, therefore, before us, unless we should presume instructions were asked and given on the motion of either party. We do not think such a presumption should be indulged. The instructions given, therefore, are all before us, and we think they are sufficiently identified as the instructions given by the court on its own motion; in other words, it is the charge of the court which is referred to. If this is...
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