Ormsby v. Graham

• Decision Date: 19 February 1904
• Citation: 98 N.W. 724,123 Iowa 202
• Parties: E. S. ORMSBY, Appellee, v. W. F. GRAHAM, J. L. GRAHAM, AND W. J. GRAHAM, Appellants; NANCY A. JEWETT AND GEO. J. CONSIGNEY, Appellees
• Court: Iowa Supreme Court

98 N.W. 724

123 Iowa 202

E. S. ORMSBY, Appellee, v. W. F. GRAHAM, J. L. GRAHAM, AND W. J. GRAHAM, Appellants;

NANCY A. JEWETT AND GEO. J. CONSIGNEY, Appellees

Supreme Court of Iowa, Des Moines

February 19, 1904

Appeal from Palo Alto District Court.--HON. A. D. BAILIE, Judge.

Decree of the district court upon the issues between plaintiff and defendants affirmed, and the decree in favor of defendant Consigney, upon his cross-petition against the Grahams REVERSED.

C. E Cohoon and Clarke & Cohenour for appellants.

E. A Morling for appellees Ormby and Consigney.

No appearance for appellee Jewett.

OPINION

THE opinion states the case. Reversed as to defendant Consigney, but otherwise affirmed.

WEAVER J.

Plaintiff brings suit in equity for the specific performance of an alleged contract for the sale of land. He alleges that the defendants Graham are the real owners, and defendant Jewett the holder of the legal title of the land; and that the contract sought to be enforced was made by the defendant Consigney as agent of the Grahams. Mrs. Jewett answers, admitting that she holds the title to the lands and is the owner thereof, subject only to certain leases to the Grahams, and to a contract by which the latter have an exclusive agency to sell the same and retain as their compensation all excess over a specified amount. She denies that she ever authorized Consigney to sell the land, or gave the Grahams any authority to confer upon him any such agency, or that plaintiff has ever tendered her the amount to which she is entitled under her agreement with the Grahams, or any other amount. The defendant Consigney files an answer, in which he "admits all the allegations of the petition, and joins therein, and avers the same to be true." He then proceeds, "by way of cross-bill," to set us substantially the same allegations contained in the petition, and asks for judgment against the Grahams for $ 3,380, the amount of commissions he would have received had the sale been consummated. The defendants Graham moved to strike the name of Consigney from the list of defendants, on the ground that he was improperly joined therein, also to strike the cross-petition, because the said Consigney was improperly impleaded in the action, and that the allegations made and relief sought are not germane to the original petition. Defendants also moved that the issue upon the cross-bill be transferred to the law calendar for trial to a jury. These motions were severally denied, and error is assigned on said rulings. By their answers to the petition and cross-bill the Grahams deny making the alleged contract of agency, and assert that a provision interlined therein, giving Consigney the excess of the selling price over $ 15,600, was inserted, without authority, after the paper was executed and delivered. They also deny that any sale was in fact made, and plead the statute of frauds. They further say that they are not the owners of the land, and have no power or authority to convey the title or cause it to be conveyed, and that plaintiff knew that fact when he made the alleged contract with Consigney. They also allege homestead rights in the land, and allege that the contract sought to be enforced was never signed by their wives, and is therefore void. Upon trial to the court decree was entered under date of December 20, 1901, dismissing plaintiff's bill, but entering a judgment against the Grahams in favor of Consigney as prayed in the cross-bill. At the close of the trial the evidence was duly certified by the court and official stenographer, and filed in the office of the clerk. The defendants Graham and the plaintiff Ormsby have both appealed, but said defendants, having first perfected their appeal, will be designated as appellants in this opinion. After taking their appeal, the Grahams in due time ordered a transcript of the evidence to be made and filed as required by law, when it was discovered that the notes and record of the testimony of the witnesses had been lost. Due search and inquiry failing to reveal said records, the appellants, within the period of six months from the date of the judgment, filed an application for an order to restore the records by retaking and substituting the evidence. The application, being presented first to Hon. W. B. Quarton, one of the judges of the district court, was by him directed to be submitted to Hon. A. D. Bailie, the judge before whom the case had been tried. After due notice a hearing was had before the last named judge within six months from the date of the judgment appealed from, and the matter taken under advisement. Thereafter, and after the expiration of said six-months period, the application was sustained, and the evidence was retaken in open court, plaintiffs and defendants appearing and taking part in the examination. The evidence thus taken was duly certified, and ordered filed as of the date June 17, 1901. The defendant Consigney appeals from the rulings and orders adverse to him made in these proceedings to substitute the record. He has also sued out a writ of Certiorari from this court to have said proceedings declared irregular and void. The arguments of counsel seem to be framed on the theory that the main case, with its cross-appeals and the certiorari proceedings, are to be considered and disposed of together, and we shall pursue that course.

I. Was there any error in ordering a substitution of the lost record? The appellants had done all that in law or reason could be required at their hands. The judgment having been entered against them, they took care to have the record duly certified and filed with the clerk, the proper custodian. Their appeal was taken in due time as provided by law. They made timely application for a transcript, and found the only record from which such transcript could be made had been lost. When search and inquiry proved fruitless, the defendants were in a position where, without fault upon their part, they were about to be wholly deprived of the benefits of the appeal, to which the law gave them an undoubted right, unless an adequate remedy could be had through the courts. It has often been held that this court will not assume jurisdiction to order a correction of a record. Reynolds v. Sutliff, 71 Iowa 549, 32 N.W. 502; DeWolfe v. Taylor, 71 Iowa 648, 33 N.W. 154; Barber v. Scott, 92 Iowa 52, 60 N.W. 497. This court having no jurisdiction, what, then, is the power of the district court in the premises? That it has power to deal with such cases has been recognized by us in a manner more or less direct on several occasions. We have held that, independent of the statute, courts have inherent power to restore records lost or destroyed. Gammon v. Knudson, 46 Iowa 455. We have also long followed the practice of allowing continuances in this court to enable parties to obtain a correction or perfection of a record in the trial court. Barber v. Scott, supra. That this power extends to the restoration of pleadings and evidence which have once had existence and have been lost, see Loomis v. McKenzie, 48 Iowa 416; Steiner v. Steiner, 49 Iowa 70. By the statute upon procedure in the Supreme Court (Code, section 4127) it is provided that "the lower court, the Supreme Court, or a judge of either court may make any necessary orders to secure a perfect record or transcript thereof upon a showing by affidavit or otherwise and upon such notice as it or he may prescribe." Manifestly, this provision is not to be construed as empowering either of these courts to control, amend, or perfect the records of the other, but as authorizing each within its own jurisdiction to exercise such power as may be appropriate and necessary to enable the parties to obtain a perfect record and transcript. It is suggested in argument that the true remedy in a case of this kind is to grant a new trial, because the substitution of evidence can be done but imperfectly at best, and results in the submission of the appeal upon another record than the one which was before the trial court. Without deciding that a new trial may not be had under some circumstances on account of loss of records, it is sufficient to say that the rule of the Loomis and Steiner Cases affords a sufficient remedy where the witnesses are all still accessible and it is probable that the testimony can be reproduced with a reasonable degree of faithfulness to the original. We see nothing in this case which affords good reason for refusing to follow the precedents referred to, and we hold that the district court had the power to order their substitution.

It is objected, however, that the order was made by the judge, and not by the court, and is therefore void. It is true that the application was first made to the judge. The district court of Palo Alto county was not in session, the records had not been found, and the six-months period from the rendition of the judgment would expire before the court would be in session. It presented a fair case for the exercise of the power to which we have already referred as being given by Code, section 4127, to the trial court, or a judge, to make "any necessary orders to secure a perfect record." If, upon examination by the judge, he found that to effectually accomplish the end sought there should be some action by the court in regular session, it was within his province to order it set down for such hearing. This is substantially what was done. The judge, finding the claim of the appellants with respect to the records to be true, caused the evidence to be retaken in open court, all parties appearing and taking part therein, and the evidence so taken was certified to by the court as of June 17, 1901. The fact that the final order and substitution was not made till after the expiration of the six...