Martin v. Martin

99 N.W. 719, 125 Iowa 73

• Court: Supreme Court of Iowa
• Decided: May 9, 1904
• Status: Published

Opinion

Deemer, C. J.

1. Appealable judgement abstract. The case was tried as-in equity because of the issues tendered by the defendants in their answers and counterclaims. The only reference in the abstract to any decree is the following: “ On the 12th day of September, 1901, the court made and filed the following judgment and decree.” Then follows the usual form of a decree, reciting the proceedings in the case, accompanied by the results arrived at, and the final order and decree in the case, all signed “ Z. A. Church, Judge.” After this is a certificate by the attorneys as to the contents of the abstract, with a statement that a transcript was filed, “ within six months of the .rendition of said decree.” Appellees contend that this does not show the entry of any decree from which an appeal may be taken. This contention seems to' be sound. For- some purposes a judgment or decree is held to have been made when the decision is announced by the judge or .other presiding officer, or when reduced to writing and signed by. the judge. See Coffey v. Gamble, 117 Iowa 548; Mentzer v. Davis, 109 Iowa, 528; Babcock v. Wolf, 70 Iowa, 676, Shenandoah Nat. Bank v. Read, 86 Iowa, 136; Guthrie v. Guthrie, 71 Iowa, 744. But this is not true as to judgments or decrees from which appeals may be taken to this court. The Code contains no provision relating to judgment forms signed by a judge, and they amount to no more than directions for judgment. They may, in some cases, be considered as evidence that a. judgment or decree has been ordered^ but a judgment or decree is not rendered until entered of record as provided by statute. That no appeal can be taken from a form of decree signed by the trial judge, even though it be filed with the clerk, see Kennedy v. Bank, 119 Iowa, 124, and the many cases cited therein. Until judgment forms, signed by the judge, are recorded, they are nothing more than directions to the clerk to enter the judgment in the form in which it is approved. To give this court jurisdiction the abstract must show affirmatively the entry of an appealable judgment. See cases heretofore cited, and Jones v. Givens, 77 Iowa, 173; Shannon v. Scott, 40 Iowa, 629.

Let us again turn to the abstract and notice the recitations therein. It is stated that, the court made and filed the following judgment and decree, and this is signed by Z. A. Church, judge. There is no statement that this judgment or decree was ever entered of record. Indeed, that thought is distinctly negatived. This so-called judgment and decree signed by the judge was “ made and filed by the court.” If filed, it could not, of course, be a decree entered upon the records, for it would be quite impossible to file such a decree. Hence the judgment form, signed by the judge must have been the one which was filed. The one made by the court was the one which was filed, for the record is that the judgment and decree was the one made and filed, and not some other, which may have been properly entered of record. Ordinarily, we will presume, in the absence of a showing to the contrary, that when the abstract,recites the rendition of a judgment or decree it was such an one as is.appealable; for there is a broad presumption that the abstract contains the record as it exists in the lower court. But where, as here, the abstract recites just what was done, there is ho room for presumption. This abstract affirmatively shows that there was no appealable decree, and in the face of such a showing we cannot presume that it was properly entered of record. The .only other reference to a decree is that the transcript was filed within six months of the rendition of said decree. Manifestly, the decree therein referred to is the one previously mentioned; and that, as we have’seen, was no decree.

2. Abstracts: amendments. This case is now pending before us on a rehearing. Since the filing of the original opinion, and- after the rehearing was granted, appellants have filed an amended abstract reciting that the judgment and decree referred to in the original abstract was duly entered of record’in the cause on September 12, 1901. ’This is, of course, a practical concession that, according to the original abstract, there was no showing of the entry of the judgment. Appellee has filed a motion to strike this amendment from the files. This motion must be sustained.

Appellants say in their motion for leave-to file that, if the statement in the original abstract be held insufficient, the defect was due to a mere oversight on the part- of the attorneys who prepared the abstract. This is rather an ingenious claim of oversight. In other words, unless held insufficient b-y this court, there was no oversight. That a new record cannot be made for this court after a petition for a rehearing has been granted, see the following among other cases: Iowa City v. Johnson County, 99 Iowa, 514; McDermott v. R. Co., 85 Iowa, 180; Johnson v. Weaver, 87 Iowa, 75. And that the showing made in excuse for failure to file a proper abstract is insufficient see Hintrager v. Hennessy, 46 Iowa, 604; Nixon v. Downey, 49 Iowa, 171. The matter to which we have referred is jurisdictional, and there was no necessity for counsel’s calling our attention to the matter on the original submission. However, when the case was originally presented, appellee’s counsel called our attention to the fact that we were without jurisdiction, but did not specifically point out the alleged defect. This he was not compelled to do.

Finding, as we do, that we have no jurisdiction of the case, the appeal must be and it is dismissed.