State Sav. Bank of Rolfe v. Ratcliffe

• Decision Date: 24 May 1900
• Citation: 82 N.W. 1011,111 Iowa 662
• Parties: STATE SAV. BANK OF ROLFE v. RATCLIFFE ET AL.
• Court: Iowa Supreme Court

111 Iowa 662

82 N.W. 1011

STATE SAV. BANK OF ROLFE

v.RATCLIFFE ET AL.

Supreme Court of Iowa.

May 24, 1900.

Appeal from district court, Pocahontas county; F. H. Helsell, Judge.

Action for the conversion of certain personal property. A jury was waived, and the case was tried to the court, resulting in a judgment for plaintiff. What is denominated a “notice of appeal” was served within the time required by statute for taking appeals, but, as this notice is challenged, our attention will be directed to the sufficiency thereof. Affirmed.Carr & Parker and S. H. Kerr, for plaintiff.

Crisman & Holbrook, for defendants.

DEEMER, J.

Notice of appeal, purporting to be duly signed, with acceptance of service thereon by attorneys for plaintiff, was duly filed with the clerk of the district court. The acceptance of service was within the time required by law, and on the face of it the notice is sufficient to give us jurisdiction. Some time after the paper was filed, plaintiff's counsel moved for a correction thereof in the district court by striking out the names of defendants' attorneys, purportingto be appended to the notice. A showing was made in support of this motion, from which the trial court found that the notice was not in fact signed when accepted by plaintiff's counsel, and it made an order correcting the same accordingly. From this order an appeal was taken. There is no doubt that the evidence before the trial court fully justified the order correcting the notice. But it is said the court had no jurisdiction to correct it. Section 4127 of the Code seems to confer jurisdiction on the trial court to make such an order. No time is fixed by statute within which to make application, and nothing but laches or equitable reasons will defeat it. Fisher v. Railway Co., 104 Iowa, 588, 73 N. W. 1070;Risser v. Martin, 86 Iowa, 392, 53 N. W. 270. But it is said the court should have considered certain correspondence between the parties as constituting notice. If that be true, it gave no ground for holding that the notice of appeal was in fact signed. The notice to correct was filed in time, and was properly sustained. As the notice was not signed, it was no notice. Doerr v. Association, 92 Iowa, 39, 60 N. W. 225. As plaintiff's attorneys accepted service of the paper, it is argued that they are estopped from claiming no notice. That question is also settled by the Doerr Case, supra. The correspondence passing between the parties is not relied on as...