McDonald & Co. v. Farrell
| Decision Date | 15 December 1882 |
| Citation | 14 N.W. 318,60 Iowa 335 |
| Court | Iowa Supreme Court |
| Parties | MCDONALD & CO. AND OTHERS v. FARRELL AND ANOTHER. |
OPINION TEXT STARTS HERE
Appeal from Buchanan district court.
Action in chancery to set aside the conveyance of certain lands made by defendant Thomas Farrell to his co-defendant, Michael, on the ground that it was executed to defraud plaintiffs, who are judgment creditors of Thomas, by defeating their judgments. The petition prays that the lands may be declared subject to the lien of plaintiffs' judgments. Upon a trial on the merits, a decree was entered granting the relief prayed for in plaintiffs' petition.John J. Ney, for appellants.
Woodward & Cook, for appellees.
1. A preliminary question, arising upon a motion of defendants to strike an amended abstract and additional transcript filed by plaintiff, must be disposed of before the cause is considered upon its merits. The amended abstract and additional transcript set out copies of the executions and returns thereon issued upon the judgments rendered in favor of plaintiffs, copies of notes upon which the judgments were rendered, and the pleadings and other proceedings in one of the cases. The additional transcript is accompanied by a certificate of the judge trying the case, which shows that these papers were introduced in evidence at the trial of the case. The motion of defendants to strike the amended abstract and additional transcript, is based upon the grounds that the papers therein appearing were not introduced in evidence upon the trial, and the certificate of the judge was made before the additional transcript was prepared. The motion, we think, ought not to be sustained. Defendants' abstract shows that the papers set out in the additional transcript and amended abstract were introduced in evidence, and that sufficient reference thereto by these dates and designations by marks, as exhibits, are found in the record. See Code, § 2834. These sufficiently identify the papers, and they ought to have been sent up by the clerk without directions or further certificate of the judge. They were probably omitted from the original transcript for the reason that, belonging to other cases, they were not lodged in the files of this case, but were returned to the files of the cases to which they belong. The clerk had the custody of all these cases. In this view it is not necessary to consider the effect and sufficiency of the certificate of the judge filed with the additional transcript. The motion must be overruled, and the papers regarded as evidence in the case.
2. The record before us shows the recovery of the judgments in favor of plaintiffs and against defendant Thomas, the issuing of the executions thereon, and the returns of no property found, and the conveyance of the lands in question by the defendant Thomas to his brother Michael. We are to determine whether this conveyance was in good faith,...
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