Hoy v. Cowgill

2 N.W. 961, 52 Iowa 711

• Court: Supreme Court of Iowa
• Decided: October 21, 1879
• Status: Published

Opinion

Servers, J.

— The petition was dismissed because in the opinion of (he court the “plaintiff is not the proper party and is not entitled to bring this suit.” Whether this ruling is correct it is unnecessary to determine. See, however, Cooley, Adm'r, v. Brown, 30 Iowa, 470. Conceding it to be erroneous, was it prejudicial. This we must bo able to affirmatively find from the record before us, before we can reverse the judgment below.

The proper motion and order were made for a trial below on written evidence, and the cause is triable de novo in this court. At the term at which this cause was submitted, on motion of the appellant, the “bill of exceptions or certificate of evidence ” was struck out of the abstract.

The evidence upon which the cause was tried is not, therefore, properly before us. It must be certified by the trial judge under Code, section 2742, or by the clerk under section 3170.

If the evidence was properly here we might conclude that on the merits the plaintiff was not entitled to recover. It is impossible, therefore, to say that prejudicial error affirmatively appears.

We deem it proper to say that some of us, at least, are inclined to believe, were it conceded the evidence was all and properly here, that the petition should be. dismissed on the merits.

Affirmed.