White v. Guarantee Abstract Co.

• Decision Date: 12 December 1895
• Parties: JOHN A. WHITE, Appellant, v. THE GUARANTEE ABSTRACT COMPANY, et al
• Court: Iowa Supreme Court

65 N.W. 305

96 Iowa 343

JOHN A. WHITE, Appellant, v. THE GUARANTEE ABSTRACT COMPANY, et al

Supreme Court of Iowa, Des Moines

December 12, 1895

Appeal from Union District Court.--HON. H. M. TOWNER, Judge.

Action for the wrongful levy of an attachment. The court directed a verdict for the defendants, and the plaintiff appealed.

Affirmed.

Jas G Bull for appellant.

Maxwell & Winter and Camp & Ickis for appellees.

OPINION

Granger, J.

There is a motion by appellees to strike from the abstract the evidence and bill of exceptions. At the trial of the cause thirty days was allowed to appellant in which to settle his bill of exceptions. The thirty days expired and on the eighteenth day of October, 1894, the bill of exceptions was not settled within the time. October 24, 1894, appellant filed a motion for leave to file a bill of exceptions, which motion was supported by an affidavit to the effect that the bill of exceptions was prepared October 17, 1894, and submitted to the opposite attorneys, who approved the same and that it was then mailed to the judge at his home, for his signature; and that the bill was not signed because of the absence from home of the judge; that the defendant and his attorney then refused to stipulate as to a bill of exceptions. On the thirteenth day of November, 1894 the motion for leave to file a bill of exceptions was sustained, and a bill of exceptions authorized to be filed as of October 18th, and it was so filed. The fact as to failure to file within the time is admitted in argument, and an attempt is made to sustain the record as made in the abstract, by the showing as to the absence of the judge; the refusal to stipulate; and a professional statement as to the absence of the attorney for appellant from the state, because of the sickness, death, and burial of his daughter, until October seventeenth, the day on which the bill of exceptions was prepared and mailed to the judge for his signature. For the purpose of this motion it may be conceded that the equitable considerations are all favorable to the appellant, and that his attorney, in view of the facts, was diligent. Yet, under the express language of the law (Code, section 2831), providing that bills of exceptions must be filed during the term, "or within such time thereafter, as the court may fix," followed by the words, "but in no event shall the time extend more than thirty days beyond the expiration of the...