Richardson v. Fitzgerald

• Citation: 109 N.W. 866,132 Iowa 253
• Parties: RICHARDSON v. FITZGERALD ET AL.
• Decision Date: 19 November 1906
• Court: Iowa Supreme Court

132 Iowa 253

109 N.W. 866

RICHARDSON

v.FITZGERALD ET AL.

Supreme Court of Iowa.

Nov. 19, 1906.

Appeal from District Court, Hardin County; W. D. Evans, Judge.

Suit for specific performance. Decree was entered as prayed. The defendants appeal. Affirmed.F. J. McGreavy, for appellants.

J. R. Heinz and Albrook & Lundy, for appellee.

LADD, J.

The cause was heard in equity on oral evidence, and a decree entered March 31, 1905. The shorthand notes, duly certified by the official reporter and trial judge, had been filed a few days before, but the transcript of the evidence was not filed with the clerk of the district court until November 29, 1905, more than six months subsequent to the entry of the decree. On this ground the appellee has moved that what purports to be the evidence be stricken from the abstract. Section 3652 of the Code provides that: “In equitable actions wherein issues of fact are joined, all the evidence offered in the trial shall be taken down in writing, or the court may order the evidence, or any part thereof, to be taken in the form of depositions, or either party may, at pleasure, take his testimony, or any part thereof, by deposition. All the evidence so taken shall be certified by the judge at any time within six months after the entry of a final decree, and the evidence and certificate be made a part of the record, and go on appeal to the Supreme Court, which shall try the cause anew.” That the notes of a stenographer were not “writing,” within the meaning of this statute, and the filing of a transcript within the time specified was essential to a trial de novo, until long after the entry of the decree, appears from the decisions of this court. Smith v. Wellslager, 105 Iowa, 140, 74 N. W. 914, and cases cited; Dwyer v. Rock, 115 Iowa, 722, 87 N. W. 495. But after the right to a hearing on the merits had been lost by the failure to perfect the record by filing a transcript, the Thirty-First General Assembly (page 111, c. 155) amended the section quoted by adding thereto the words: “But this section shall be so construed as to include the evidence taken in shorthand, when the reporter's notes of such evidence have been certified to by the judge and reporter within the time herein provided.” This became effective February 14, 1906, and, though directory in form, this is not objectionable in so far as it relates to the future. The law may be changed by a declaratory statute, and, in so far as it relates to cases wherein decrees had not been entered, it is no objection to its validity that it may assume the law to have been in the past what it is now declared it shall be construed to be in the future. Union Iron Co. v. Pierce, 4 Biss. (U. S.) 327, Fed. Cas. No. 14,367; Cooley on Const. Lim. (7th Ed.) 135. Fairly interpreted, the amendment amounts to no more than it would had the Legislature inserted in the statute “or in shorthand” after the words “in writing.” Certainly the lawmakers had no purpose of instructing this court with reference to the construction of the original statute. As every one knows, it is the province of the Legislature to enact, of the judiciary to expound, and of the executive to enforce, the laws, and any direction by the Legislature that the judicial function shall be performed in a particular way is a plain violation of the Constitution. Says Mr. Cooley, in Const. Lim. 114: “As the Legislature cannot set aside the construction of the law already applied by the courts to actual cases, neither can it compel courts for the future to adopt a particular construction of a law which the Legislature permits to remain in force.” Expository legislation is so uniformly condemned by the courts that we need cite no more than a few of the numerous decisions with our approval of the principle. Com. v. Warwick (Pa.) 33 Atl. 373;People v. The Board of Supervisors of the City and County of New York, 16 N. Y. 424;Houston v. Bogle, 32 N. C. 496; The Governor v. Porter, 5 Humph. (Tenn.) 165;Reiser v. William Tell Savings Fund Ass'n, 39 Pa. 137;McLeod v....