Patterson v. Jack

• Decision Date: 20 October 1882
• Citation: 13 N.W. 724,59 Iowa 632
• Parties: PATTERSON v. JACK
• Court: Iowa Supreme Court

13 N.W. 724

59 Iowa 632

PATTERSON v. JACK

Supreme Court of Iowa, Dubuque

October 20, 1882

Appeal from Jasper District Court.

THIS is an action in equity to recover of the defendants, Julia A and A. J. Jack, damages for an alleged failure to complete according to contract a certain building in the city of Des Moines. The court adjudged that the plaintiff recover of the defendant, Julia A. Jack, four hundred and sixty-two dollars. The defendant, Julia A. Jack, appeals. The facts are stated in the opinion.

AFFIRMED.

Winslow & Wilson, for appellant.

H. S Wilcox, for appellee.

OPINION

DAY J.

The judgment was entered in this case on the 20th day of September, 1881. On the 11th day of January, 1882, the defendants filed a motion as follows: "Come now the defendants and move the court for a new trial and examination of the issues in this cause for the following causes affecting the substantial rights of the defendant, to-wit:

"1. Irregularity in the proceedings of the prevailing party by which the defendant was prevented from having a fair trial.

"2. Misconduct of the prevailing party and his attorney.

"3. Accidents which ordinary prudence could not have guarded against.

"4. Error in the assessment of the amount of recovery.

"5. That the decision is not sustained by sufficient evidence, and is contrary to law.

"6. Newly discovered evidence."

This motion was overruled on the 22d day of February, 1882. On the 30th day of March, 1882, the defendant, Julia A. Jack, caused to be served a notice that she "has appealed from the judgment of the District Court in the above entitled cause."

I. Section 3173 of the Code provides: "Appeals from the District and Circuit Courts may be taken to the Supreme Court at any time within six months from the rendition of the judgment or order appealed from, and not afterwards." From the 20th day of September, 1881, when the decree in this case was filed in the court below, to the 30th day of March, 1882, when the notice of appeal was served, is six months and ten days. The appeal was not taken in time to have a review of any of the proceedings which culminated in the decree. No trial de novo can be had upon this appeal. See Cohol v. Allen, 37 Iowa 449.

II. If the appeal be regarded as from the order of the court refusing to grant a new trial, the order of the court below must be affirmed for the following reasons:

First. The motion was not made until nearly four months after the judgment was rendered. It was therefore too late to be considered for any cause except the last. Code, § 2838; Boardman v. Beckwith, 18 Iowa 292; Clinton National Bank v. Graves, 48 Iowa 228.

Second. As to the last ground, newly discovered evidence, it is altogether unsupported by affidavit or otherwise.

Third. When an appeal is taken in an equity case from a ruling upon a motion or demurrer, errors must be assigned. Powers v The County of O'Brien, 54 Iowa 501, 6 N.W. 720. All of the...