Ross v. Leader

• Decision Date: 21 October 1909
• Citation: 122 N.W. 812
• Parties: ROSS v. LEADER ET AL. (FARMERS' LOAN & TRUST CO., INTERVENER).
• Court: Iowa Supreme Court

122 N.W. 812

ROSS

v.LEADER ET AL. (FARMERS' LOAN & TRUST CO., INTERVENER).

Supreme Court of Iowa.

Oct. 21, 1909.

Appeal from District Court, Monona County; Wm. Hutchinson, Judge.

“Not to be officially reported.”

The pleading indicated that through negotiations with plaintiff's husband a written contract for the exchange of her farm in Monona county to defendant J. B. Leader for land in Cherry county, Neb., was entered into and papers essential to effect the transfers exchanged. The plaintiff prayed that the contract be rescinded, and that the deed conveying the Monona county land and the note and mortgage on the Nebraska land which she had executed be canceled on the grounds (1) that her ratification of the contract was procured by fraudulent misrepresentation of the Nebraska land; (2) that abstracts showing perfect title thereto had not been furnished as stipulated; (3) that the defendant Thompson, in whose hands the papers had been placed in escrow, delivered the same to Leader without authority. The defendant put these allegations in issue, and sought in a separate action to have the plaintiff enjoined from interfering with the harvesting of the crops on the Monona county farm. The Farmers' Loan & Trust Company held a mortgage on this farm, and in a petition of intervention asked for the same relief as that sought by plaintiff. The actions were consolidated, and on hearing the district court awarded plaintiff the relief prayed. Decree was entered December 6, 1907. Four months later, April 10, 1908, the defendants filed their petition for a new trial. To this the plaintiff interposed objections, and subject thereto demurred to defendant's petition. The parties then stipulated that the official reporter who took down the evidence in shorthand, W. E. Cody, was, owing to sickness, unable to perform his duties as such shortly after the trial, that on the 28th of December his malady was found to be fatal, and that he died in March, 1908, and that the shorthand notes had never been certified. The cause was submitted on this stipulation in connection with the pleadings, and on July 16, 1908, an order entered granting a new trial. The plaintiffs appeal. Reversed.Prichard & Newby, for appellant.

Shull, Farnsworth & Sammis, for appellees.

E. P. Farr, for interveners.

LADD, J.

The application for new trial was submitted on the pleadings and stipulations of the parties. This stipulation was to the effect that the official court reporter, W. E. Cody, had become sick shortly after the entry of the decree, December 6, 1907, and had been unable to work thereafter until his death in March, 1908. The shorthand notes had not been certified. The petition for new trial alleged, in substance, that...