Short v. The Chicago, Milwaukee and St. Paul Railway Company

• Decision Date: 24 January 1890
• Citation: 44 N.W. 539,79 Iowa 73
• Parties: SHORT v. THE CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY COMPANY
• Court: Iowa Supreme Court

44 N.W. 539

79 Iowa 73

SHORT v. THE CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

January 24, 1890

Decided January, 1890.

Appeal from Pottawattamie District Court.--HON. GEORGE CARSON Judge.

THE plaintiff claims to be the owner of a lot in the city of Council Bluffs: and she brought this action against the defendant to recover the damages which she alleges she sustained by reason of the laying down of railroad tracks partly on the street adjacent to said lot, and partly upon said lot. The defendant answered the petition by a general denial. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff for one hundred dollars. Defendant appeals.

AFFIRMED.

Wright Baldwin & Haldane, for appellant.

D. C Bloomer and Flickinger Bros., for appellee.

OPINION

ROTHROCK, C. J.

I.

It appears from what is claimed to be an abstract of the record that the case was tried upon the oral testimony of witnesses, and a claim of defendant that it was authorized to do the acts complained of by virtue of a written contract made between the defendant and the Kansas City, St. Joseph and Council Bluffs Railroad Company. The judgment appealed from was rendered on the thirtieth day of June, 1888; and the judgment entry contained the following clause: "The defendant is to have sixty days in which to file a bill of exceptions herein." No bill of exceptions was filed within the sixty days, and no action was taken by defendant during that time for an extension of the time within which to file exceptions.

The plaintiff moves to dismiss the appeal because of the failure to perfect the record within the time fixed by the court. In resistance of this motion it is made to appear that on the first day of October, 1888, the defendant filed a motion in the court below for leave to file a bill of exceptions as of the twenty-eighth day of August, 1888. The motion was heard and on the thirteenth day of April, 1889, the court sustained the same so far as to allow the defendant to file the bill of exceptions as of that date, and the motion was otherwise overruled. On the same day the defendant filed in open court a duly-certified record of the evidence. It may be conceded that if this certified record had been filed within the time fixed by the court it would have been sufficient as a bill of exceptions. But it was not filed within sixty days from the date of the...