Byington v. Oaks

32 Iowa 488

• Court: Supreme Court of Iowa
• Decided: October 24, 1871
• Status: Published

Opinion

Oole, J.

l.practice: rulings. I. Yarious motions and demurrers were filed; some were sustained, and others overruled; but any errors, if there were such, in respect thereto, were waived by pleading over and going to a trial on the merits. This has been often so ruled.

a. Evidence .- strument.m" II. The plaintiffs offered in evidence a copy of a deed made by Le Grand to G. E. Byington. The evidence then taken showed that the original was in existence and was part of the files of a case in the supreme court, and could have been readily procured by the plaintiffs; and thereupon, on the objection of the defendants, the court refused to admit the copy in evidence. That there was no error in this ruling has been twice held by this court. See Rev., § 2236; Williams v. Heath, 22 Iowa, 519; Ackley v. Sexton, 24 id. 320.

3. Stamps : omission. III. The plaintiffs then offered in evidence certain deeds executed since October 20, 1862, and having no United States revenue stamps affixed thereto The record tends to show that the stamps were purposely omitted, the parties denying the constitutionality of the stamp law. On the objection of the defendants, the deeds were excluded. In this holding there was no error: all the decisions agree that in such case the unstamped instruments are not admissible. The intended omission to stamp must be equivalent to or constitute proof of an “ intent to evade,” etc., within the meaning of the statute.

4. conveyofCbianks°e evidence. IY. The plaintiffs offered in evidence a certain deed, regular in form, and with a certificate of acknowledgment and seal, etc., appearing to be in due form but the abstracts tend to show that thp certificate of acknowledgment was made years ago, in blank, and the deed filled up since the action was brought and for the purposes of the trial. Under such circumstances the deed was rightly excluded.

There are eighteen errors assigned, similar in kind and effect to those above considered; we have examined them in detail and discover no error to plaintiff’s prejudice. It seems to us to be unnecessary to state them seriatim in this opinion. We have not been favored with any argu ment upon either side, and do not kp.ow that any particu lar proposition is specially relied upon. The j udgment is not without authority under Revision, sections 3562, 3563. The instructions asked and refused are not before us; and under the circumstance attending the making up and signing the bill of exceptions, it is very questionable whether we can rightfully consider any question made upon it. The entire record is very suggestive of the great propriety and importance of settling and having the bill of exceptions signed at the time, or at furthest, at the term, of trial.

Affirmed.