McAurthur v. Schultz

• Decision Date: 08 October 1889
• Citation: 43 N.W. 223,78 Iowa 364
• Parties: MCAURTHUR v. SCHULTZ.
• Court: Iowa Supreme Court

78 Iowa 364

43 N.W. 223

MCAURTHUR

v.SCHULTZ.

Supreme Court of Iowa.

Oct. 8, 1889.

Appeal from district court, Linn county; J. H. PRESTON, Judge.Davis & Voris, for appellant.

Thompson & Lanning, for appellee.

GIVEN, C. J.

1. Appellant's abstract of record shows that this action was commenced at law, to recover damages for an alleged breach of covenants of warranty in a deed of conveyance, by reason of lands being incumbered by an unsatisfied mortgage for $300. The defendant filed his cross-petition, alleging that plaintiff had assumed said mortgage, and that by mistake or fraud it was omitted to insert the exception of said mortgage in the deed. The abstract shows that the case was transferred to equity, and that on Noember 20, 1880, the court entered the following of record in said cause, to-wit: “November 20th, trial to the court, and submitted;” and on the following day, to-wit, November 21st, the following entry was made of record by the court in said cause, to-wit: “November 21st, plaintiff asks and has leave to withdraw all his claim except $10 interest, paid on incumbrance, without prejudice, and finding for plaintiff, judgment for $10 and costs; to all of which defendant excepts.” Defendant perfected his appeal, and assigns as errors “the granting of leave to and permitting plaintiff to dismiss any part of his claim and cause of action sued upon on the 21st day of November, and after the said cause on the issues joined therein had been tried and submitted to the court on the 20th day of November.” Appellee, in his brief and argument, denies the correctness of appellant's abstract, but fails to file any further or additional abstract. Appellee sets out in his brief and argument what purports to be a certificate from the trial judge, showing “that at the conclusion of the argument I announced that I would take the matter under consideration, and give my decision later; that at that time William G. Thompson, one of plaintiff's attorneys, announced and stated to me that in case I concluded that no judgment could be rendered in favor of plaintiff for any greater sum than the evidence shows he had paid on the mortgage, to-wit, $10, that he, said Thompson, reserved the right to dismiss without prejudice all of said claim except $10, which he did before I made the final order of judgment.” This is not a certification of the record, but of matters transpiring between the attorney and judge, that are not of record. Appeals to this court are based upon the records of the cause from the court from which they are brought, and it is not competent to explain, contradict, or extend the recital of the record by affidavits or certificates. See Holmes v. Budd, 11 Iowa, 186;Bartle v. City of Des Moines, 37 Iowa, 635; Pearson v. Maxfield, 47 Iowa, 136; ...