McFarland v. Folsom

• Decision Date: 06 June 1883
• Citation: 15 N.W. 863,61 Iowa 117
• Parties: MCFARLAND v. FOLSOM AND OTHERS.
• Court: Iowa Supreme Court

61 Iowa 117

15 N.W. 863

MCFARLAND

v.FOLSOM AND OTHERS.

Supreme Court of Iowa.

Filed June 6, 1883.

Appeal from Boone district court.

Plaintiff brought an action against defendants, James Folsom & Co., upon promissory notes, wherein an attachment was issued, and the City Bank of Boone was garnished thereon, and answering, showed that it had money of defendants on deposit. Thereupon E. L. Dexter intervened, claiming a part of the money upon deposit in the bank. Upon a trial without a jury the court found for the intervenor, and rendered judgment that the amount of money claimed by him be released from the attachment. Plaintiff appeals.Hindman & Hall and Kidder & Crooks, for appellant.

Webb & Dyer, for appellee.

BECK, J.

1. The appellee files an amended abstract, showing substantially that the cause was not tried as an action in equity in the court below, and that the bill of exceptions, or certificate of the evidence, was not filed within the time prescribed, 60 days, in the order of the district court; and thereon bases a motion to strike the bill of exceptions and the evidence from the record. The plaintiff does not deny this amended abstract, but, as avoiding it, alleges that the case was tried upon written evidence, but shows in his supplemental abstract that three witnesses were examined orally in court. It appears from the abstract that the depositions of these witnesses were taken and read upon the trial. Neither does plaintiff deny that the bill of exceptions or certificate was filed after the time prescribed in the judgment, but he alleges that he did not ask such time, and that a bill of exceptions was not necessary, as all exceptions appeared upon the record.

2. The plaintiff insists that the case is depending in chancery and should be tried here de novo, and that a bill of exceptions was not necessary to make of record and identify the evidence. We think his position is not well taken. The proceedings were at law, and there appears to be no order transferring them to the chancery side of the court. The relief sought by the intervenor is within the powers of a court of law. The case seems to have been tried as a law action in the court below, and is presented to us as a law action upon errors assigned. It clearly appears that it must be regarded in this court now, and as having been from the first, an action at law.

3. The plaintiff, by the order of the court, had 60 days in which to file his bill of exceptions. The judgment set out...