Smith v. Cumins & Co

• Decision Date: 24 October 1879
• Citation: 2 N.W. 1041,52 Iowa 143
• Parties: SMITH v. CUMINS & Co
• Court: Iowa Supreme Court

2 N.W. 1041

52 Iowa 143

SMITH v. CUMINS & Co

Supreme Court of Iowa, Des Moines

October 24, 1879

Appeal from Dickinson Circuit Court.

THE defendants, T. Cumins & Co., commenced an action against Joseph L. Bingham and Hannah Bingham, his wife, to subject certain real estate, the title to which was in said Hannah Bingham, to the payment of a judgment against the said husband upon a certain stay bond. It was averred in the petition, in substance, that the title to the land being in said Joseph L. Bingham he made a voluntary conveyance thereof to his said wife, which was fraudulent as against said Cumins & Co., his creditors. An issue was made in the action and depositions were taken. Certain of the depositions were suppressed upon motion, and the "evidence and case" were submitted to the court, and the following entry was made in the judge's calendar. "Decree dismissing plaintiff's bill unless they will file evidence within thirty days, with the clerk of the court, that the land described in the petition was of the actual cash value of more than $ 600, in April, 1876. If no evidence is filed within thirty days, the bill to be dismissed absolutely * * * ."

No evidence was filed within thirty days after the adjournment of the term, and the clerk, at the request of the attorney of Hannah Bingham, entered a decree dismissing the plaintiff's petition absolutely, and, also, an affirmative decree quieting the title in said Hannah Bingham.

Thereupon the plaintiff herein, who was then clerk of the court, upon his own motion made a complete record of said cause including the depositions and all other papers filed in the case, and taxed the costs thereof to Cumins & Co. The matter of the costs for making said complete record having been submitted to the court below, upon a hearing the court found that the plaintiff was entitled to recover for recording the original notice and return, petition and interrogatories attached, demurrer to petition, amendment to petition, the answers of the defendants, and the amendments thereto, reply application for continuance, and decree, and that he was not entitled to fees for recording the other papers filed in the case. Both parties appeal.

REVERSED.

J. A Smith, pro se.

Soper & Allen, for defendants.

OPINION

ROTHROCK, J.

I.

The clerk had no authority, on his own motion, to enter any decree not warranted by the entries upon the judge's calendar. The entries or minutes upon the calendar serve as a guide to the clerk in making the record entry. The minutes upon the calendar directed a decree dismissing the plaintiff's petition or bill, and nothing more.

II. But if such record entry was authorized from the minutes on the calendar, we do not think this is such a case as is contemplated by the statute, requiring a complete record to be made. Section 2866 of the Code is as follows: "In cases where the title to land is involved, and expressly settled or determined, the clerk shall make a complete record of the whole and enter it in the proper book * * * ." The plaintiffs, in the petition to subject the land to the payment of their claim, did not question the title of the wife only so far as it affected them as the creditors of...