Ross v. Loomis

• Decision Date: 09 October 1884
• Citation: 20 N.W. 749,64 Iowa 432
• Parties: ROSS v. LOOMIS
• Court: Iowa Supreme Court

20 N.W. 749

64 Iowa 432

ROSS v. LOOMIS

Supreme Court of Iowa, Davenport

October 9, 1884

Appeal from Guthrie Circuit Court.

THIS is an action in equity, and involves the title to one hundred and twenty acres of land. The plaintiff claims to be the owner in fee of the land, and prays that his title may be quieted. The defendant claims that he is the absolute owner and, by a cross-petition, demands that the title may be quieted in him. Upon a trial in the circuit court, the petition and cross-petition were dismissed without prejudice and both parties appeal.

Affirmed on plaintiff's appeal, and, on defendant's appeal, REVERSED.

Willard & Hopper, W. D. Kelsey, C. A. & J. G. Berry, and G. E McCaughan, for plaintiff.

Fogg & Neal, for defendant.

OPINION

ROTHROCK, CH. J.

I. Counsel for plaintiff make the question that the cause is not in a condition for trial de novo in this court, and by a motion filed in the case they ask that the evidence be stricken from the abstract, because it is not identified by the proper certificates. The trial was had partly upon depositions and other record evidence, and partly upon the testimony of witnesses taken down in short-hand by the reporter of the court. The short-hand reporter noted the documentary evidence in his report, and at the close of the trial the judge indorsed a certificate upon the notes of the short-hand reporter, to the effect that it was the official report of the cause, "and that the same, together with the documentary evidence therein referred to, contains all the evidence offered, the objections and rulings made, and exceptions taken on the trial of said cause, and the same is made part of the record herein." The short-hand reporter transcribed the notes of evidence, including the certificate of the judge, and to the whole he appended his own official certificate as to its correctness and completeness.

The plaintiff cites us to the case of Godfrey v. McKean, 54 Iowa 127, 6 N.W. 151, in support of the motion. That case holds that stenographic notes cannot be regarded as such a writing as is contemplated by the statute, chapter 145, Laws of 1878. But it does not hold that, where the court orders the evidence to be taken down in short-hand, and it is so done and properly certified, and it is afterwards transcribed, that this is not a compliance with the provision of the statute that the evidence shall be taken down in writing. In this case, the reporter's notes were ordered to be made part of the record. In the case cited, the plaintiff sought to require the judge to order the reporter to transcribe the notes, without making any provision for paying the reporter for such service, and it was held that no such requirement could be made. We do not think that it should be required that the translation or transcript should be made at the time of the trial, in order to comply with the provision of the statute that the evidence shall be taken down in writing.

II. It was conceded by the parties upon the trial that the land in controversy, at one time, was the property of one Robert Y. McCorkle, and that he was the common source of title. The plaintiff, to sustain his title, introduced in evidence a quit-claim deed of the land, executed by Sarah E. McCorkle and some few other persons, by which they quitclaimed all of their interest in the land to W. D. Kelsey. The deed was dated June 29, 1882, and recited that the grantors were residents of Rush county, Indiana, and that they were the widow and heirs of Robert G. McCorkle. Some question is made as to whether the initial letter written in the name was the letter "G." or "Y." We attach no importance to this, because, as between these parties, the recitals above named are wholly immaterial. They are not competent evidence to prove either the death of McCorkle or the heirship of the grantors. Whatever force they might have as between the parties to the instrument, or their privies, or persons holding under them, they are of no value in this controversy, because the defendant claims title under an alleged conveyance by Robert Y. McCorkle. Costello v. Burke, 63 Iowa 361, 19 N.W. 247.

It was necessary, therefore, for the plaintiff to prove that McCorkle, the owner of the land, was dead when the conveyance in question was made, and that the grantors in the deed were his widow and heirs. To make this proof, W. D. Kelsey, the grantee in the deed, was introduced as a witness. It appears from his testimony that he resides in Guthrie county, in this state, and that he went to Rushville, Indiana, after the execution of the deed, and was there informed that that was the former home of Robert Y. McCorkle. We quote from his testimony, as presented in plaintiff's abstract:

"That was the general reputation there in that part of the country. It was the general repute that that was his home. I talked with his widow, with the citizens in the town of Rushville, with the lawyers who represented the estate of Robert Y. McCorkle, with the neighbors and friends and relatives of Robert McCorkle, and it was the general repute and reputation among the neighbors and relatives of Robert Y McCorkle that he was dead at the time of the execution of this deed. It was the general repute and reputation among the relatives...