Slone v. Berlin

• Citation: 55 N.W. 341,88 Iowa 205
• Parties: MARTHA SLONE, Appellant, v. C. T. BERLIN, Appellee
• Decision Date: 17 May 1893
• Court: United States State Supreme Court of Iowa

55 N.W. 341

88 Iowa 205

MARTHA SLONE, Appellant, v. C. T. BERLIN, Appellee

Supreme Court of Iowa, Des Moines

May 17, 1893

Appeal from Jones District Court.--HON. JAMES D. GIFFEN, Judge.

ACTION against the plaintiff to recover for wages as a school teacher. From a verdict and judgment for the defendant, the plaintiff appeals.

Affirmed.

Welch & Welch, for appellant.

J. W Doxsee and Sheean & McCarn, for appellee.

OPINION

KINNE, J.

I.

The appellee moves to strike from the abstract all of the evidence, because no translation of the shorthand notes was filed with the clerk of Jones county within six months from the date of the rendition of the judgment in the case, nor had it been filed or made of record on April 1, 1892, the date of service of the appellee's additional abstract. Judgment was entered September 28, 1891, and the shorthand notes of the evidence taken in the trial were filed at its close, and on the same day. The abstract was served on the appellee January 12, 1892, and filed February 19, 1892. The appellant's argument was served February 25, 1892, and filed February 26, 1892. By agreement, the appellee was given till April 1, 1892, to file an additional abstract. It was in fact served and filed March 31, 1892. The translation of the reporter's notes was filed with the clerk of the district court April 5, 1892. April 16, 1892, the appellant served a denial, which was filed in this court, with a transcript, on April 21, 1892.

The appellee, in support of his contention that the translation of the notes must be filed within six months from the date of the rendition of the judgment, refers to Lowe v Lowe, 40 Iowa 220, and Harrison v. Snair, 76 Iowa 558, 41 N.W. 315. It appears in the case at bar that a duly certified skeleton bill of exceptions was filed with the clerk of the district court of Jones county within the time given to file a bill of exceptions. The notes of the shorthand reporter, which were then on file, were properly made part of said bill. In the Lowe case neither the notes nor a translation of them was ever filed in the lower court or made of record therein. In Harrison v. Snair no translation of the notes was ever in the clerk's office.

We held in Hampton v. Moorhead, 62 Iowa 91, 17 N.W. 202 that it was competent to make a skeleton bill of exceptions, and incorporate the original notes by mere reference, and that when such a bill was made and filed the original notes were by it made a part of the record, and the record was thus made complete, so far as the evidence embraced therein was concerned. It is there held that the transcript of the notes is only necessary for the purpose of making the record, the notes, intelligible to others than the reporter. It is true, that was an equitable action. In Hammond v. Wolf, 78 Iowa 227, 42 N.W. 778, it is said that in civil cases, not triable de novo, there is no time fixed by statute within which the translation of the shorthand reporter's notes must be filed; they should be filed before the clerk is required to prepare a transcript of the record for this court. Warbasse v. Card, 74 Iowa 306, 37 N.W. 383. In the Hammond case it is further said: "Since there is no provision of law fixing, in terms or by necessary implication, the time within which the translation of the shorthand reporter's notes shall be certified and filed in civil actions at law, we conclude that it is sufficient in any case if done within such time as to permit the submission of the case in this court in the manner and within the time fixed by statutory and other rules applicable to such cases." Now it appears in the case at bar that the translation of the notes was in fact filed April 5, 1892, and prior to the time the clerk made his transcript. The appellee complains that they were not filed before he prepared his additional abstract. But he had never, so far as this record shows, called for a transcript of the notes. His filing of an additional abstract was the first notice to the appellant that a translation of the notes would ever be required. She had, up to that time, reason to believe that the appellee might be satisfied with the evidence as set out in the abstract. Just as soon as it became apparent that it would be necessary to have the notes transcribed, a translation of them was filed. In the light of what is said in the Hammond case, the appellant, in this regard, did all that was required...