Kunz v. Young

• Decision Date: 10 April 1896
• Citation: 66 N.W. 879,97 Iowa 597
• Parties: M. KUNZ v. JAMES C. YOUNG, Appellant
• Court: Iowa Supreme Court

66 N.W. 879

97 Iowa 597

M. KUNZ v. JAMES C. YOUNG, Appellant

Supreme Court of Iowa, Des Moines

April 10, 1896

Appeal from Webster District Court.--HON. N. B. HYATT, Judge.

ACTION to quiet title. Decree for plaintiff. Defendant appeals.

Affirmed.

C. C Cole for appellant.

R. M Wright for appellee.

OPINION

KINNE J.

I.

Plaintiff claims title to the land in controversy in Webster county, Iowa under the swamp land grant, passed by Congress on September 28, 1850, and by act of the General Assembly, passed in 1853, and the subsequent selection of the land as swamp land by the agents of Webster county, the sale of the same to John F. Duncombe, and deed to him by the county; also, under a tax deed of said land, by the treasurer of said county, to one A. Jacobs, of date May 28, 1870; also, under a tax deed, by the treasurer, of said county, dated April 24, 1888, to F. T. Walker; also, a deed from said Walker and wife to W. G. Watters, and a deed from Duncombe and wife to said Watters, also a deed from Watters and wife to the plaintiff. Defendant claims title under the "railroad land grant" of May 15, 1856, and a grant from the state of Iowa to the Dubuque & Pacific Railroad Company, and by subsequent transfer to the Dubuque & Sioux City Railroad Company, and by certification of the land by the department of the interior to the last-named company, and by quit-claim deeds from the railroad company to William Ragan, and from said Ragan to the defendant.

II. In this case the appellant filed an abstract which recites that it contains "all the evidence introduced or offered on the trial of the cause." Appellee files an additional abstract, containing many corrections of, and additions to appellant's abstract, and at the close thereof states "And appellee denies that appellant's abstract, and this additional abstract, when taken together, are, or constitute all the evidence offered or received in the trial of said cause." To the denial appellant files no further abstract, either in denial of the additional abstract, or by way of reaffirmance of the correctness of his own abstract. Appellant, however, files a transcript. This is an equity cause, triable de novo in this court; and it is essential that it appear that we have all of the evidence before us. It has often been held that when the appellee, in an additional abstract, denies that appellant's abstract is an abstract of all the evidence in the case, such statement by appellee will be deemed true, in the absence of a denial by the appellant. Kearney v. Ferguson, 50 Iowa 72; Love v. Donaldson, 63 Iowa 631 (19 N.W. 804); Acton v. Coffman, 74 Iowa 17 (36 N.W. 774); Shattuck v. Insurance Co., 78 Iowa 377 (43 N.W. 228); Carson & Rand Lumber Co. v. Knapp, Stout & Co. Company, 80 Iowa 617 (45 N.W. 544); Burkhart v. Ball, 59 Iowa 629 (10 N.W. 260), and (13 N.W. 666); Marsh v. Smith, 73 Iowa 295 (34 N.W. 866); Foley v. Hefferon, 70 Iowa 572 (31 N.W. 877); Chapin v. Garretson, 85 Iowa 377 (52 N.W. 104); Fairbairn v. Haislet, 90 Iowa 143, 57 N.W. 702 (57 N.W. 702); Hopkins v. Railway Co., 94 Iowa 752 (64 N.W. 603); Dungan v. Railway Co., 96 Iowa 161; Farwell v. Zenor (100 Iowa 640, 65 N.W. 317); Cleveland v. Atkinson, 94 Iowa 621 (63 N.W. 465); Turner v. Steam Co., 94 Iowa 715 (61 N.W. 415). In this condition of the record, we cannot consider the case on its merits. Goode v. Stearns, 82 Iowa...