McLaughlin v. J. C. Hubinger Bros. Co.

• Decision Date: 21 October 1907
• Citation: 135 Iowa 595,113 N.W. 475
• Parties: MCLAUGHLIN v. J. C. HUBINGER BROS. CO.
• Court: Iowa Supreme Court

135 Iowa 595

113 N.W. 475

MCLAUGHLIN

v.J. C. HUBINGER BROS. CO.

Supreme Court of Iowa.

Oct. 21, 1907.

Appeal from District Court, Lee County; Henry Bank, Jr., Judge.

Suit to recover damages for a personal injury. Trial and judgment for the plaintiff, from which the defendant appeals. Appeal dismissed.D. F. Miller and W. J. Roberts, for appellant.

Hughes & Sawyer, for appellee.

SHERWIN, J.

A judgment for the plaintiff was entered on the 6th of January, 1906. By consent the defendant was given time in which to file a motion for a new trial, and on the 22d of January, 1906, within the time agreed upon, a motion for a new trial was filed. The motion was overruled on the 12th of May, 1906, and on the 20th of October following the defendant perfected an appeal to this court.

It will be observed that the appeal from the ruling on the motion for a new trial was taken more than six months after the judgment was entered. Code, § 4110, provides that appeals to the Supreme Court may be taken at any time within six months from the rendition of the judgment or order appealed from, and not afterwards. While the ruling on a motion for a new trial is an appealable order under section 4101, and an appeal therefrom more than six months after the rendition of the judgment will give this court jurisdiction to consider all matters presented therein which do not inhere in the judgment, we have repeatedly held that, when the time has passed within which an appeal may be taken from the judgment before the appeal is taken from the ruling on a motion for a new trial, we have no jurisdiction to review any of the proceedings which culminated in the judgment and necessarily inhere therein. Cohol v. Allen, 37 Iowa, 449;Carpenter v. Brown, 50 Iowa, 451;Patterson v. Jack, 59 Iowa, 632, 13 N. W. 724;Bosch v. Bosch, 66 Iowa, 701, 24 N. W. 517;Palmer v. Rogers, 70 Iowa, 38, 30 N. W. 645;Wambach v. Grand Lodge, 88 Iowa, 313, 55 N. W. 516;Jones v. C. & N. W. Ry. Co., 36 Iowa, 68. In Wambach v. Grand Lodge, supra, we said: “Time in taking an appeal is a jurisdictional fact. It must affirmatively appear. Of our own motion, we are required, before trial, to ‘see to it’ that a case is one of which we have jurisdiction.” See, also, Plummer v. People's Nat. Bank, 74 Iowa, 731, 33 N. W. 150. The rule that an appeal from all questions inhering in the judgment must be taken within six months from the rendition of the judgment is a salutory one. An appeal lies from the judgment...