Van Winkle v. Iowa Iron & Steel Fence Co.

• Decision Date: 11 June 1881
• Citation: 9 N.W. 211,56 Iowa 245
• Parties: VAN WINKLE v. THE IOWA IRON AND STEEL FENCE CO. ET AL
• Court: Iowa Supreme Court

9 N.W. 211

56 Iowa 245

VAN WINKLE v. THE IOWA IRON AND STEEL FENCE CO. ET AL

Supreme Court of Iowa, Des Moines

June 11, 1881

Appeal from Cedar Rapids Superior Court.

ON the 2d day of May, 1880, the plaintiff recovered judgment against the Iowa Iron and Steel Fence Company in the sum of $ 183.77. On the 8th day of May, Gilmore & Clark were served with notice of garnishment, and were cited to appear on the second day of the following June Term. A commissioner was appointed by the court to take the answers of the garnishees. On the 6th day of July, 1880, the commissioner filed in court the answers of the garnishees. The plaintiff thereupon filed a motion for judgment on the answers of the garnishees. The hearing on said motion was continued from time to time until the 23d day of October, 1880, when the court entered a judgment for plaintiff for $ 22.83, and a provisional judgment for $ 178.47, unless the garnishees elect to turn over the assets in their hands, sufficient to satisfy the judgment. The garnishees appeal.

REVERSED.

Gilmore & Clark, for appellants.

Rickel West & Eastman, for appellee.

OPINION

DAY, J.

I. The appellee in argument urges that the transcript of the record shows that no exceptions were taken to the action of the court in sustaining appellee's motion for judgment upon the answers of garnishees, at the time such action was had and that no exception was taken until the bill of exceptions was filed, more than three days after the judgment was entered. The abstract sets out what purports to be a correct copy of the judgment entry. In this entry, immediately after the rendition of judgment, is the following statement "to which garnishee defendants except." This clearly imports that the exception was taken when the judgment was rendered. The plaintiff cannot impeach the abstract by a mere statement in argument. If the abstract was deemed incorrect, an amended abstract should have been filed by appellee.

II. It is insisted that the abstract does not purport to contain all the evidence. The abstract states: "On the 6th day of July, 1880, the said commissioner, N. L. Ward, filed in this case the answer of garnishees, as follows, omitting formal parts." Then follows question and answer, covering, with the exhibit attached, thirteen pages of the printed abstract. The abstract states that the commissioner "filed the answer of garnishees, as follows." If the answer contained other matter this statement is misleading and untrue. The only reasonable inference from the abstract is that the answer set out contains the entire answer of the garnishee. No issue was taken upon the answer of the garnishee. No other...