Harrison v. Snair

41 N.W. 315, 76 Iowa 558, 1889 Iowa Sup. LEXIS 30

• Court: Supreme Court of Iowa
• Decided: January 19, 1889
• Status: Published

Opinion

Beck, J.

1. pbactioe: appeal^ *or filing- . — I. The defendant' moves the court to strike from the abstract all of the evidence in the case, on fhe ground that it is not of record in the court below. The defendant, in support of this motion, shows that no translation of

the short-hand reporter’s notes has been filed in the court below. The short-hand notes were deposited in due time in the court below, though not marked “filed.” As to the notes, this is sufficient. But no translation thereof has ever been deposited in the clerk’s office. The evidence does not become a part of the record until the short-hand ’notes, together with a translation thereof, are deposited in the clerk’s office, and the evidence thus presented is duly certified by the judge. Lowe v. Lowe, 40 Iowa, 220; McCarthy v. Watrous, 69 Iowa, 260; Arts v. Culbertson, 73 Iowa, 14; Merrill v. Bowe, 69 Iowa, 654; Gibbs v. Buckingham, 48 Iowa, 96; Wadsworth v. First Nat. Bank, 73 Iowa, 425. The motion must be sustained, and the evidence stricken from the abstract. II. But plaintiff insists that; as there is no denial of the abstract by an amended abstract, showing the

2a Appeal : abstract ■wiiatis. true condition of the record, the abstract will be taken as true. But the defendant filed a certificate of the clerk of the district court, showing the fact that no --translation of the shorthand notes has been deposited or filed in his office. This certificate is to be regarded as an amended abstract, showing the true condition of the record as to the matter under consideration.

3 MONsTmust sidered . together. III. The evidenoe being stricken from the abstract, no questions in the case arising upon the evidence, or in the decision of which the evidence is to be considered, can be decided. All questions involving the sufficiency of the evidence to support the ver diet, and the applicability of the instructions to the evidence, are of this character. They include all the questions in the case, with but one exception, which arises upon an instruction pointing out what acts would be in fraud of creditors. A sentence of the instructions informs the jury that a fraud upon a creditor is an act with the intent to prevent him from recovering his just debt by withdrawing from his reach the property of his debtor. It is insisted that all acts of withdrawal of the- debtor’s property are not necessarily fraudulent. But the instruction, read with others given, must be understood as referring to unlawful acts done with intent to hinder, delay or defeat creditors. The instruction is not erroneous. In our opinion, the judgment of the district court ought to be Affirmed.