Bellows v. Tod

3 N.W. 102, 52 Iowa 359

• Court: Supreme Court of Iowa
• Decided: October 28, 1879
• Status: Published

Opinion

Day, J.

l. equitable oancoñatrón o£ Judgment, The case is triable here d& novo, and is to be determined upon its merits without any regard to the finding of the referee. Five of the jurors, and three bystanders, as well as the plaintiff and his attorney, testify that the deed in question ivas introduced in evidence. It is certain that the number of the witnesses who testify upon the subject is largely in favor of' the position of plaintiff' that the deed was, in fact, introduced. It is probable also that the preponderance of the evidence when tested by the rales for determining the value and weight of testimony is also in favor of the plaintiff’s position upon this point. In the view which we take of the case, however, we deem it unnecessary to determine as to the correctness of the referee’s sixth finding of fact, about which the plaintiff especially complains. We have set out very fully the plaintiff’s petition, because we deem it essential to a proper disposition of the case, for the plaintiff, if he recover at all, must recover upon the facts alleged in the petition. Emerson v. Udall, 13 Vt., 477 (484). An examination of the petition will disclose that the entire ground of complaint is the alleged wrongful and willful act of the trial judge, in refusing to allow the plaintiff a full and fair bill of exceptions. It is nowhere alleged in the petition that the opposite party or his attorney in any manner perpetrated a fraud upon the plaintiff.

Prom the allegations of the petition it appears that the plaintiff knew, at the time the bill of exceptions was presented to the judge for his signature, that the judge refused to sign a full and fair bill of exceptions. The plaintiff presented his case to this court upon a bill of exceptions which he at the time knew to be unfair and incomplete. Failing to reverse the judgment of, the court .below, he now brings this case in equity to set aside this judgment upon the sole ground that the trial judge refused to give him a fair bill of exceptions, and that, if sucli bill had been allowed the judgment below would bare been reversed. We clo not believe that the plaintiff’s- petition brings his cause within any recognized ground of equitable relief. Section 2835 of the Code provides a remedy where the trial judge refuses to sign a bill of exceptions. "Whether this section is applicable to a case where the parties agree that the time may he extended beyond tlie term for the signing of the bill, we need not determine. If there is any remedy for the refusal of the judge, after the adjournment of the term, to sign a fair bill of exceptions, it must be obtained before tbe case is passed upon in this court. .A party cannot submit his case in this court upon a bill of exceptions known to be unfair and incomplete, take bis chances of procuring a reversal upon such bill, and failing, maintain an action in equity to set asido both the judgment in tlie court below and in this court, upon the ground that the court fraudulently refused to sign a fair bill of exceptions.

In a note to section 1574 of Story’s Equity Jurisprudence, upon the subject of equitable interference with judgments at-law, it is said; “The rule of the best considered and more recent bases upon the subject is that the party must haw* failed in obtaining redress in the suit at law, by the fraud of the opppsite party, or inevitable accident or mistake, without any default either of the party or his counsel.” This we believe to be the correct rule. The petition of plaintiff does not make a case within the rule above prescribed.

Affirmed: