Dwyer v. Rock

87 N.W. 495, 115 Iowa 722

• Court: Supreme Court of Iowa
• Decided: October 10, 1901
• Status: Published

Opinion

McClain, J.

There are motions submitted with the ease to dismiss the appeal, on the ground that the appeal was not perfected within six months after the rendition of the decree, and to strike the evidence from the record for the reason that the translation of the shorthand notes was not certified by the judge and the reporter, and a transcript thereof filed within six months after the decree, as required by Code, section 3652. Our ruling on the latter of these motions will dispose of the case. The transcript of the reporter’s notes was not filed until more than six months from the rendition and entry of the final decree.

It is well settled that under the statutory provisions in force prior to the adoption of the present Code, this court could not try an equity case de novo which had been tried in the lower court on oral evidence, unless the evidence was taken down in writing, and certified by the judge within six months after the decree. While a taking down of the evidence in shorthand was recognized as proper, it was required that either the translation of the shorthand notes or the notes themselves be certified by the judge, and in either case the translation, either certified by the judge or by the reporter, showing the certification of the notes by the judge, must be filed within the six months. Ross v. Loomis, 64 Iowa, 432; Merrill v. Bowe, 69 Iowa, 653; Wise v. Usry, 72 Iowa, 74; Arts v. Culbertson, 73 Iowa, 13; Kavaleir v. Machula, 77 Iowa, 121; Calef v. Cole, 93 Iowa, 679 ; Smith v. Wellslager, 105 Iowa, 140. Section 3652 of the present Code has not changed the law in this respect. Counsel contend, however, that by Code, section 3675, which provides for the taking down in shorthand of the proceedings on the trial in both ordinary and equity cases, a change has been made in the law, and that under this section it is enough to warrant a trial de novo if the evidence is thus taken down, without regard to the time when it is transcribed and certified. We find, however, nothing in the language of this section to change the rule as to the preservation of the evidence in order to secure a trial de novo. That matter is still regulated by the provisions of Code, section 3652. We are not concerned now with the effect of the taking down of the evidence in shorthand as a substitute for the bill of exceptions, as to which see State v. Welsh, 109 Iowa, 19; In re Tobey’s Estate, 112 Iowa, 581. A bill of exceptions would not help the appellant in this case, which comes to us without assignment of errors and for trial de novo, if it is to be considered on this appeal in any form. The evidence not having been -preserved in the manner required, the judgment must be aeeirmed.