Tucker v. Carlson
| Decision Date | 11 April 1901 |
| Citation | 85 N.W. 901,113 Iowa 449 |
| Parties | S. W. TUCKER v. CHARLES CARLSON et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Lee District Court.--HON. HENRY BANK, JR., Judge.
ACTION to quiet title. From a decree in plaintiff's favor defendants appeal.
Reversed.
Nannie M. Smith and J. F. Smith for appellant.
John E Craig and A. L. Parsons for appellee.
Two motions are submitted with the case. One seeks to strike the additional abstract of appellee because not filed within the time prescribed by the rules. Appellee claims the delay was caused by the fact that appellant took from the clerk's office the transcript of evidence, and kept it, despite appellee's frequent requests therefor. This is denied by appellant. We shall not attempt to settle this controversy, but shall overrule the motion, because we do not strike an abstract on the ground that it is not filed in time under the rules unless there is some showing of prejudice, and no such showing is made in this case. City of Fort Madison v. Moore, 109 Iowa 476, 80 N.W. 527, and cases cited therein.
The other motion filed by appellee asks to have the appeal dismissed on two grounds: (1) Because all the evidence has not been certified to this court; and (2) because notice of appeal was not served on one Gambrel, who was joined as defendant with appellant. As to the first ground, it is sufficient to say that the denial made by the appellee of the record is not in such form as to require its certification. An amended abstract is filed by him, apparently covering all the defects of which he complains. The omission to serve notice of appeal on Gambrel is of no consequence, for the action was dismissed by plaintiff as against him, and the controversy here presented can be determined without in any manner affecting his rights. This brings us to the merits of the case. Plaintiff claimed title to the southeast 1/4 of northeast 1/4 of section 21, township 65 north, of range 5 west, in Lee county, except 1 acre in northeast corner thereof and 6 acres in southeast corner; and he claimed also 9 1/2 acres in another 40-acre tract, of which no more particular description need be given. This action was brought in 1895, at which time plaintiff held separate tax deeds to these two tracts. As both of these deeds were held void by the trial court for indefiniteness of description, and plaintiff has taken no appeal, we need give them no further consideration. The cause stood in the trial court until the year 1898, when plaintiff, by amendment, set up a claim to the northwest 28 acres of the southeast 1/4 northeast 1/4 21-65-5 west. A number of objections are urged to...
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