Martin v. Martin

• Decision Date: 09 May 1904
• Citation: 99 N.W. 719,125 Iowa 73
• Parties: DENNIS MARTIN, Appellee, v. JOHN MARTIN, ET AL., Appellants
• Court: Iowa Supreme Court

99 N.W. 719

125 Iowa 73

DENNIS MARTIN, Appellee, v. JOHN MARTIN, ET AL., Appellants

Supreme Court of Iowa, Des Moines

May 9, 1904

Appeal from Greene District Court.--HON. Z. A. CHURCH, Judge.

ACTION at law to recover rent. The defendants interposed many defenses which, in view of our disposition of the case need not be further noticed. Defendants duly served notice of appeal to this court on September 20, 1901, but there is no recitation in the notice as to what the appeal is from. Ordinarily, this is not necessary, but, as we shall see, it has some bearing on this case. Appeal dismissed.

Appeal dismissed.

J. D Howard, Shortley & Harpel and Carr, Hewitt, Parker & Wright for appellants.

Rose & Henderson and Salinger & Korte, for appellee.

OPINION

DEEMER, C. J.

The case was tried as in equity because of the issues tendered by the defendants in their answers and counterclaims. The only reference in the abstract to any decree is the following "On the 12th day of September, 1901, the court made and filed the following judgment and decree." Then follows the usual form of a decree, reciting the proceedings in the case, accompanied by the results arrived at, and the final order and decree in the case, all signed "Z. A. Church, Judge." After this is a certificate by the attorneys as to the contents of the abstract, with a statement that a transcript was filed, "within six months of the rendition of said decree." Appellees contend that this does not show the entry of any decree from which an appeal may be taken. This contention seems to be sound. For some purposes a judgment or decree is held to have been made when the decision is announced by the judge or other presiding officer, or when reduced to writing and signed by the judge. See Coffey v. Gamble, 117 Iowa 545, 91 N.W. 813; Mentzer v. Davis, 109 Iowa 528, 80 N.W. 557; Babcock v. Wolf, 70 Iowa 676, 28 N.W. 490; Shenandoah Nat. Bank v. Read, 86 Iowa 136, 53 N.W. 96; Guthrie v. Guthrie, 71 Iowa 744, 30 N.W. 779. But this is not true as to judgments or decrees from which appeals may be taken to this court. The Code contains no provision relating to judgment forms signed by a judge, and they amount to no more than directions for judgment. They may, in some cases, be considered as evidence that a judgment or decree has been ordered, but a judgment or decree is not rendered until entered of record as provided by statute. That no appeal can be taken from a form of decree signed by the trial judge, even though it be filed with the clerk, see Kennedy v. Bank, 119 Iowa 123, 93 N.W. 71, and the many cases cited therein. Until judgment forms, signed by the judge, are recorded, they are nothing more than directions to the clerk to enter the judgment in the form in which it is approved. To give this court jurisdiction the abstract must show affirmatively the entry of an appealable judgment. See cases heretofore cited, and Jones v. Givens, 77 Iowa 173; Shannon v. Scott, 40 Iowa 629.

Let us again turn to the abstract and notice the recitations therein. It is stated that the court made and filed the following judgment and decree, and this is signed by Z. A Church, judge. There is no statement that this judgment or decree was ever entered of record. Indeed, that thought is distinctly negatived. This so-called judgment and decree signed by the judge was "made and filed by the court." If filed, it could not, of course, be a decree entered upon the records, for it would be quite impossible to file such a decree. Hence the judgment form signed by the judge must have been the one which was filed. The one made by the court was the one which was filed, for the record is that the judgment and decree was the one made and filed, and not some other, which may have been properly entered of record. Ordinarily, we will presume, in the absence of a showing to the contrary, that when the abstract recites the rendition of a judgment or decree it was such an one as is appealable; for there is a...