McGillivray v. Case

• Decision Date: 16 December 1898
• Citation: 77 N.W. 483,107 Iowa 17
• Parties: MCGILLIVARY BROTHERS, Appellants, v. A. G. CASE
• Court: Iowa Supreme Court

77 N.W. 483

107 Iowa 17

MCGILLIVARY BROTHERS, Appellants, v. A. G. CASE

Supreme Court of Iowa, Des Moines

December 16, 1898

Appeal from Mitchell District Court.--HON. JOHN C. SHERWIN, Judge.

JUDGMENT for three hundred and fourteen dollars and seventy-seven cents and decree foreclosing mechanic's lien were entered against defendant Banwell for materials used in the construction of a creamery building. Issue was joined on the answer of the defendant Case, and, on hearing, his mortgage declared senior to the mechanic's lien of plaintiff. The latter appeals.

Affirmed.

Sweney & Lovejoy for appellant.

Ellis & Ellis for appellee.

OPINION

LADD, J.

I.

The abstract of the appellant does not contain any statement to the effect that it is a full and correct abstract of the record, or that it contains all the evidence introduced or offered,--that received as well as that rejected. This point is not made by appellee in an additional abstract, or by denial, but is suggested in argument, and he insists that much of the evidence is omitted, and, because of there being no certificate, the case cannot be heard de novo. That such a statement or certificate was essential prior to the time the Code went into effect,--October 1, 1897,--in order to have the sufficiency of the evidence to sustain a verdict or judgment reviewed or an equity case heard on its merits, appears from State v. Wright, 98 Iowa 702, 68 N.W. 440; In re Holderbaum, 82 Iowa 69, 47 N.W. 898; Names v. Names, 74 Iowa 213, 37 N.W. 163; and Conwell v. House, 57 Iowa 754, 11 N.W 714. Good faith on the part of him who prepares an abstract requires the statement that it includes the entire record. To hold otherwise might lead to much looseness in preparing such papers. The rule is not too stringent for general application, though without it counsel might well be expected to so prepare their abstracts that the court could correctly determine all the questions raised in argument. It was doubtless in recognition of this, and to obviate rulings because of defects not urged, which might be readily cured by appropriate amendment, that section 4118 of the Code was enacted. That section, so far as material, is as follows "Printed abstracts of the record shall be filed in accordance with rules established by the supreme court, and shall be assumed to contain the record, unless denied or corrected by subsequent abstracts." Section 22 of the rules, governing the practice in the supreme court, is in part: "The abstract so filed will be presumed to contain the record unless denied or corrected by a subsequent abstract. Every denial shall point out as specifically as the case will permit the defects alleged to exist in the abstract." The very evident meaning of the statute as well as the rule is that the abstract, in the absence of any denial, or correction, or statement therein to the contrary, is presumed to contain the record with sufficient completeness to enable the court to pass upon every question raised. If a defect exists in the way of an omission, or if extraneous matter is included, or if the abstract is untrue in any respect, or if not properly certified to be full and complete, this must be brought out by specific denial, or corrected by an additional abstract; else it will be deemed to have been waived, and the abstract conceded to be true and sufficient to enable the court to correctly determine every question made in argument. A denial made in argument will be disregarded. McFarland v. City of Muscatine, 98 Iowa 199; Kunz v. Young, 97 Iowa 597, 66 N.W. 879; Agency v. Bush, 84 Iowa 272, 50 N.W. 1063; Van Winkle v. Fence Co., 56 Iowa 245, 9 N.W. 211; Farmer v. Sasseen, 63 Iowa 110, 18 N.W. 714; Rankin v. Miller, 43 Iowa 11. As the defect in the abstract is not pointed out by denial or additional abstract, it will be disregarded, and the abstract assumed to present a record appropriate for hearing de novo.

II. The last item of material was furnished Banwell by plaintiff for the construction of his creamery on the seventh day of August, 1893, and on the sixteenth day of September a mechanic's lien was filed. In the affidavit attached thereto A. C. McGillivary is named as affiant, but it is signed "McGillivary Bros.," and purports to be sworn to before S. F. McGillivary, a justice of the peace and member of the firm. This action was begun January 20, 1894, and, upon discovering the defect in the affidavit, an amendment to the petition was filed March 23, 1894, alleging the correction of the verification to the mechanic's lien on the thirteenth of the same month by A. C. McGillivary signing the affidavit. On the other hand, Banwell, who was owing the First National Bank of Nashua, Iowa, several notes, amounting in the aggregate to eight hundred and fifty-two dollars, for the purpose of satisfying these executed to A. G. Case his note for that sum on the eighth day of November, 1893, and, on the same day, a chattel mortgage on the creamery building and personal property therein, securing its payment. The bank at that time had gone into liquidation, and Case, who...