Maxwell v. La Brune

28 N.W. 18, 68 Iowa 689

• Court: Supreme Court of Iowa
• Decided: April 23, 1886
• Status: Published

Opinion

Beck, J.

1. highway: of^appeai'i11* auditoiCTip” ed. I. The plaintiff filed an amended abstract showing that no notice of an appeal to the circuit court an(^ service thereof were filed either with .the county auditor or clerk of the- circuit court, and that such notice and return have never been made a matter ot record m the case m any manner, and that no notice of such appeal was ever served upon the auditor or plaintiff".

II. This amended abstract is not denied, and, under familiar rules and the practice prevailing here, is regarded as admitted, and as presenting the true condition of the record in the court below. It follows that the circuit court rightly dismissed the appeal upon plaintiff’s motion, the record showing that no appeal had been taken.

2. practice in supreme court: parties concluded py record. III. The circuit court overruled a motion by defendants to require the auditor of the county to correct the transcript “so as to show whether or not he was served . with notice of appeal, together with the date oi j. i : o service and filing.” A motion for a rule on the sheriff to return the notice of appeal was also overruled. Defendants now complain of these rulings. But surely they suffered no prejudice by and cannot complain of the rulings, for the reason that there were no such notice and service, a fact shown by the amended abstract, and admitted by their failure to deny it.

The judgment of the circuit court is

Affirmed.