Smith v. Wellslager

• Decision Date: 08 April 1898
• Citation: Smith v. Wellslager, 74 N. W. 914, 105 Iowa 140 (Iowa 1898)
• Parties: SMITH v. WELLSLAGER ET AL.
• Court: Iowa Supreme Court

105 Iowa 140

74 N.W. 914

SMITH

v.WELLSLAGER ET AL.

Supreme Court of Iowa.

April 8, 1898.

Appeal from district court, Polk county; W. F. Conrad, Judge.

Action to foreclose a chattel mortgage on a stock of goods owned by the Lathrop-Rhoads Company, and to establish a lien on certain accounts assigned to secure the debt, and to establish the priorities of lienholders. Richard T. Wellslager was appointed receiver of all the goods, accounts, and choses in action of the company, and, in behalf of the other creditors, answered, alleging that the Lathrop-Rhoads Company, in executing the note to plaintiff, acted ultra vires, and the mortgage and assignment of accounts were made by said company for the purpose of hindering, delaying, or defrauding creditors. The F. M. Lupton Publishing Company and the National Wall-Paper Company intervened, making substantially the same claim against plaintiff's right of recovery as set up by the receiver. There was a decree for plaintiff as prayed, and Wellslager, as receiver, appeals. Affirmed.C. H. Sweeney and Bailey & Ballreich, Granger & Bennett, N. B. Raymond, and J. C. Macey, for appellant.

Dudley, Coffin & Byers, for appellee.

LADD, J.

Issue of fact was joined, and the cause tried at the September, 1896, term of court. At the conclusion of the trial the report in shorthand of all the proceedings had was duly certified by the judge and official reporter, and filed. Final decree was entered October 24, 1896. A transcript of the evidence was prepared and certified by the reporter December 1, 1896, but not filed with the clerk till October 18, 1897, and then without the certificate of the judge. The appellee moved to strike the evidence and affirm because the evidence had not been made a part of the record, and no question of law involved may be passed upon without such evidence. Thereupon the appellants filed an assignment of errors, and the appellee, by amendment to his former motion, asks that this be stricken from the files, for the reason that the cause was tried in the district court as an equitable action, on issues joined, and no rulings were had or exceptions saved as required on law issues, and the assignment of errors is predicated on the evidence, which is not properly before this court.

1. The notes of the stenographer are not writing, within the meaning of the law. Godfrey v. McKean, 54 Iowa, 127, 6 N. W. 151;Baldwin v. Ryder, 85 Iowa, 251, 52 N. W. 201. But when his notes, identifying all documentary evidence, are duly certified to by the trial judge, the transcript thereof, including the judge's certificate, duly certified by the reporter, may become written evidence. Ross v. Loomis, 64 Iowa, 432, 20 N. W. 749;Goetz v. Stutsman, 73 Iowa, 693, 36 N. W. 644;Burnett v. Loughridge, 87 Iowa, 324, 54 N. W. 238. To secure a trial de novo, however, a transcript of the evidence must be on file within six months from the time final decree is entered. Merrill v. Bowe, 69 Iowa, 653, 29 N. W. 766;Arts v. Culbertson, 73 Iowa, 13, 34 N. W. 490;Yetzer v. Wiles, 91 Iowa, 478, 59 N. W. 287;Kavaleir v. Machula, 77 Iowa, 123, 41 N. W. 590;Lumber Co. v. Davis, 82 Iowa, 731, 47 N. W. 1079;Calef v. Cole, 93 Iowa, 679, 62 N. W. 24;Bank v. Redhead (Iowa) 72 N. W. 651. See, also, Dietz v. Pipe Co. (Iowa) 72 N. W. 691.

2. But the appellants insist that they are entitled to hearing on their assignment of errors, and that for this purpose the evidence is properly before this court. The report of all the proceedings, taken down in shorthand, when duly certified by the trial judge and reported, constitutes a complete bill of exceptions in an action at law, and is filed at the conclusion of the trial. The time for filing the transcript is not limited by the statute. Hammond v. Wolf, 78 Iowa, 227, 42 N. W. 778;Fleming v. Stearns, 79 Iowa, 256, 44 N. W. 376;Slone v. Berlin, 88 Iowa, 205, 55 N. W. 341;Barber v. Scott, 92 Iowa, 52, 60 N. W. 497. That a different rule, however, pertains in equity, is recognized in these cases. Formerly, all issues of fact, whether ordinary or equitable, were tried on oral evidence, except those of actions in equity, where trial on written evidence was ordered by the court on the application of one of the parties, made at the appearance term. Code 1873, §§ 2741, 2742. Under these sections of the statute, the rules pertaining to the preparation of the record in ordinary actions applied, unless trial was ordered on written evidence. Cross v. Railway Co., 51 Iowa, 683, 2 N. W. 586;Lutz v. Kelly, 47 Iowa, 307. Section 2741 was amended by chapter 83 of the Acts of the Eighteenth General Assembly, limiting trials on oral evidence to ordinary actions. Section 2742 was also amended by chapter 145 of the Acts of the Seventeenth General Assembly, and again by chapter 35 of the Acts of the Nineteenth General Assembly, and as so amended is as follows: “But in equitable actions, wherein issue of fact is joined, all the evidence offered in the trial shall be taken down in writing, or the court may order the evidence, or any part thereof, to be taken in the form of depositions, or either may at pleasure, take his testimony, or any part thereof, by deposition. All the evidence so taken shall be certified by the judge at any time within the time allowed for the appeal of said cause, and be made a part of the record and go on appeal to the supreme court, which shall try the cause anew.” Attention is called to the change in these statutes in Schmeltz v. Schmeltz, 52 Iowa, 512, 3 N. W. 536. The authorities upon which appellant relies construed the sections of the Code of 1873 prior to their amendment. At present the only provision concerning the manner of trying equitable actions, and the preservation of the evidence taken, as a part of the record, which shall go on appeal to the supreme court, is that quoted. The law, as it now stands, requires such actions to be tried on written evidence, and no motion for that purposeis required. Hines v. Horner, 86 Iowa, 594, 53 N. W. 317. It is only when an equity case is tried as a law action that the...