Cox v. Macy

41 N.W. 28, 76 Iowa 316, 1888 Iowa Sup. LEXIS 207

Opinion

Beck, J.

— The case is not in a condition permitting us to examine and try it upon the merits, for the following reasons:

I. It is not presented upon an agreed abstract.' Plaintiffs allege that it does not appear that the evidence upon which the case was based is before us. There is no agreed abstract, but defendants file the original pleadings, evidence and other papers in the case, including the certificate of the evidence made by the judge trying the case. The statute requires a transcript of the records, except the evidence, ,to be sent here on appeal. Code, secs. 3179, 3181. The abstract can only be supported by the transcript when it is required by the statute to be filed in the case. This court cannot, in such case, recognize the original papers (except the evidence) as a substitute for the transcript. Defendants, therefore, do not support their claim that the evidence is all before us, which is denied by plaintiffs; We cannot consider the original certificate of the evidence filed with the other papers. It should be here as a part of the certified record.

II. For the same reason defendants fail to show that the appeal was taken, which is denied by plaintiffs. They have no transcript of the notices of appeal, as required by Code, section 3179 ; and what purports to be the original notices of appeal filed in the case show service thereof before the decree was rendered,-as stated by the papers before us. For these reasons we cannot entertain the appeal and consider the case on the merits. -It is1

Dismissed.