Gibbs v. Buckingham

48 Iowa 96

• Court: Supreme Court of Iowa
• Decided: April 3, 1878
• Status: Published

Opinion

Day, J.

I. No bill of exceptions was signed by the judge who tried the cause, showing the testimony introduced, or the rulings made upon the trial.

1. practice: bill of exceptions On the 22d day of November, 1876, the short-hand reporter executed the following certificate: “I, W. S. Briggs, short-hand reporter in and for said county, do hereby certify that I reported the foregoing testimony on the trial of said cause of Gibbs, Administrator, v. Buckingham, at the November Term, 1876, of said court, and that the same, and exhibits and depositions therein referred to, contain all the testimony, rulings of the court, and exceptions thereto taken upon said trial. ”

On the 26th day of November, 1877, the judge who tried the cause signed the following certificate: “I certify that the evidence referred to and enumerated in the foregoing certificate of W. S. Briggs, short-hand reporter for the District Court of the second judicial district, including the county of Monroe, was all the testimony in the ease of Gibbs, Administrator, etc., v. W. J. Buckingham et al., tried at the November Term of the District Court of Monroe county, 1876.” This certificate was made one year after the trial.' The plaintiff moved to strike out the bill of exceptions thus made up, for the reason that it was not signed within the time by law prescribed. In State v. Fay, 43 Iowa, 651, where the evidence was reduced to writing during the trial, showing the rulings of the court touching the admission and exclusion of evidence, and the judge certified that the writing contained all the evidence and the proceedings on the trial, we held that there had been a sufficient compliance with the statute respecting bills of exceptions. But in order that it may hare this effect the certificate must be signed within the time prescribed for signing a bill of exceptions. The bill of exceptions must be signed during the term, unless the parties agree to extend the time beyond the term. Code, § 2831; Harrison v. Charlton, 42 Iowa, 573. If a bill of exceptions is not signed within the time prescribed by statute, and there is no agreement of parties extending the time of signing, it may be stricken from the record on motion. Lynch v. Kennedy, 42 Iowa, 220. The motion preferred in this case must be sustained.

II. Nothing remains in the record to be considered but the ruling of the court granting a change of venue. It is claimed that the court had no jurisdiction to grant a change of venue in this case.

2. —: change of venue j neiv trial. ' Section 3155 of the Code provides that, where the grounds for a new trial are discovered after the term at which the decisión was rendered, the application may be made by petition, on which notice shall be served and returned, and the defendant held to appear as in an original action, and the case shall be tried as other cases by ordinary proceedings. Under this section we think the right to a change of venue attaches to this proceeding, when the recognized grounds for it exist.

Affirmed.