Davenport v. Ells

22 Iowa 296

• Court: Supreme Court of Iowa
• Decided: June 12, 1867
• Status: Published

Opinion

Dillon^ J.

1. Appeal to supreme court: imperfect transscript. This was a suit in equity, triable by the first method, by which the plaintiff, the widow of a creditor of Edward Ells, deceased, sought for an , , account from the defendants, administrators 0f the estate of the said Edward, and for relief against the alleged illegal sale of certain real estate by the said defendants. There was a trial and judgment for the defendants, from which the plaintiff appeals. The decree must be affirmed, because it does not sufficiently appear that we have before us all of the evidence on which the cause was heard in the District Court. There is a stipulation as to certain facts, but no statement that the cause was submitted to and decided by the court upon this stipulation.

The statement of the clerk, that he has certified “ all of the evidence appearing on file,” does not sufficiently establish that the evidence thus certified was all that was used in the court below.

It is all important that this court should know exactly upon what the cause was heard in the District Court. To this end, we recommend as a proper practice, where a review of the whole cause is sought upon the evidence, that the record entry or a certificate of the judge should specify upon what evidence or whose depositions the cause was heard, and be accompanied with the statement that this was all of the evidence.

Upon the circumstances we order the decree below to stand affirmed, but as it is not improbable that the plaintiff’s cause has merit, this order is without prejudice to a new action, if brought within six months from the close of this term.

Affirmed.