Sheldon Bank v. Royce

• Decision Date: 23 January 1892
• Citation: 84 Iowa 288,50 N.W. 986
• Parties: SHELDON BANK v. ROYCE.
• Court: Iowa Supreme Court

84 Iowa 288

50 N.W. 986

SHELDON BANK

v.ROYCE.

Supreme Court of Iowa.

Jan. 23, 1892.

Cross-appeals from district court, O'Brien county; C. H. LEWIS, Judge.

The plaintiff bank is the owner of the east 48 feet of lot No. 24 in block No. 8, in Sheldon, Iowa. The defendant is the owner of lots Nos. 21, 22, 23, and the remainder of lot No. 24 in said block. In 1888 the plaintiff erected a building covering the entire portion of lot No. 24 owned by A. The walls of the building are of stone and brick, 17 feet high; the south wall being on the line between lots 23 and 24, and the west wall on the dividing line of lot No. 24, as owned by the parties to this suit. The walls of this building on the south and west are without openings. Since the erection of plaintiff's building the defendant has erected a building on the lots owned by him in such manner that it adjoins the building of plaintiff on the south and west; and the plaintiff claims that the construction of the defendant's building is in such a manner that the south and west walls of its building are walls in common, and this action is brought to recover one-half the value thereof, under the provisions of chapter 10, tit. 13, of the Code. The petition is in two counts,--the first asking to recover because of a use of the south wall, and the second because of the use of the west wall, of plaintiff's building. The cause was tried in the district court without the aid of a jury, and the court gave judgment for plaintiff on the first count of the petition, and denied it judgment on the second count. Both parties appealed.W. D. Boies and Geo. E. Clark, for plaintiff.

O. M. Barret and Heminway & Grundy, for defendant.

GRANGER, J.

1. Plaintiff moves to dismiss the defendant's appeal on two grounds: (1) That no bill of exceptions has ever been filed; and (2) if one has been filed, it was not within the time agreed upon. On the 9th day of April, 1889, the court having determined the issues, the following appears as a record entry: “And thereupon, by consent of parties, either party has ninety days within which to file his bill of exceptions.” Defendant filed his bill of exceptions July 8, 1889, it being, including the day on which the order was made, the ninety-first day; and plaintiff urges that, as the order required the bill to be filed “within” the 90 days, the filing was too late. Plaintiff insists that “within” means “inside of,” and that defendant did not have 90 days to file his bill of exceptions in, but was bound to file the same “inside of ninety days.” We think the bill was filed “inside of” or “within” 90 days if filed before the completion of the ninetieth day. It is important to determine when the time began to run in pursuance of the order. Subdivision 23 of section 45 of the Code provides that in computing time “the first day shall be excluded and the last included.” In Manning v. Irish, 47 Iowa, 650, this statute is applied to the computation of time in a case like this. Applying that rule, and the bill of exceptions was filed in this case on the ninetieth day, and within the time fixed by the order or agreement. The theory upon which plaintiff urges that no bill of exceptions was filed is that the filing was at 7 o'clock P. M., after business hours, and that when filed it was at once, at the request of plaintiff's attorney, delivered to him, taken from the office, and has not since been returned there. It does, however, appear that it was taken by counsel for defendant to prepare an abstract for this appeal, and was afterwards delivered to counsel for plaintiff, but not, as they claim, until long after the abstract was completed, nor until after plaintiff's argument was served upon them. We think the facts show that there was a filing of the bill of exceptions within the meaning of the law. The taking of the bill from the office immediately after filing, to prepare an abstract, could not change the fact as to the filing, and the propriety of so doing could hardly be questioned. The method may have been irregular, under the rule of practice that “the original files shall be taken from the clerk's office only on order of the judge, by leaving with the clerk a receipt for the same,” (rule 1 of “Rules of Practice” adopted by the district judges;) but, again, this would not change the fact as to the filing. The motion to dismiss the appeal is overruled.

2. Upon defendant's appeal the question for us to determine is whether or not there is evidence from which the district court could, as a matter of law, find for the plaintiff. It is a law action, and the finding of the court on a question of fact has the force of a verdict of a jury. To a proper conclusion it will be necessary to refer to the...