Moses v. Penquit

34 N.W. 443, 72 Iowa 611

• Court: Supreme Court of Iowa
• Decided: October 14, 1887
• Status: Published

Opinion

Seevers, J.

1. appeal: practice: lindmg of doneetosup-port.

I. The defendant Penquit was township clerk for two terms, and, with a single exception, as we understand, it is sought to recover money received by ...... . , . ,. him during his second term, lhere is no dis- ° Puf:e as ^ie amoun^ received by him during that term, and the question is whether he properly accounted therefor; and, as tending to show that he did, evidence was introduced tending to show that there had been a settlement with the trustees after the expiration of his term of office. It should possibly be stated that the plaintiff, in addition to denying that there had been a settlement, pleaded that it had been obtained by the false and fraudulent representations of Penquit. Several errors are assigned and argued by counsel, but we are impressed that the principal ground upon which a reversal is claimed is that the finding of the court is in conflict with the evidence, and that under it the finding should have been for the plaintiff for at least some amount. We have therefore carefully read the abstract, and such portions of the transcript as are necessary, in order to solve controversies caused by conflicting abstracts, and have reached the conclusion that we cannot grant a new trial on this ground.

The defendant Penquit testifies that the township records and vouchers for money expended by him were destroyed by fire. There is no evidence contradictory to this, and upon the evidence of such witness the defendants mainly rely. The court saw and heard him testify, and necessarily has reached the conclusion that substantially he told the truth. There is no evidence or anything in the record authorizing us to reach a different conclusion, and the most favorable view for the appellant which can be taken is that different minds might possibly, from the evidence, reach different conclusions. "We cannot say that the able and experienced judge before whom the case was tried was actuated either by passion or prejudice. ITe without doubt reached the conclusion he did after a fair and honest consideration of the evidence, and that there is evidence upon which his finding can be fairly supported we have no serious doubt, and therefore the judgment cannot be disturbed.

error'without prejudice. II. The other errors relate to the admission and rejection of evidence, and we have grave doubts, if the evidence excluded had been admitted, or if that admitted been excluded to which objections were made, and there was- no evidence tending to show a settlement, whether the finding would have been in any respect different. As, however, there is evidence tending to show a settlement sufficient to warrant the court in reaching such conclusion, most of the errors discussed which relate to the admission or exclusion of evidence are clearly not prejudicial. It is, therefore, not essential that we should specifically consider the same.

3. evidence: memoranda oí township clerk record-.cessor. III. There was evidence tending to show that, at the time it is claimed one of the settlements was made, the defend-made ant Penquit, then being township clerk, , ... upon a loose “ slip or slips ” ot paper certain r i. x j. j. m6m0randa of the action taken by the trustees time. These slips of paper came into the possession of his successor in office, and the action of the trustees, as indicated on such papers, was by such township clerk entered of record. This record was admitted in evidence, against the objection of the appellant, because it is said that it tended to show that there was a settlement, and we think such record was admissible for this purpose. The record was written by the proper officer, and it is immaterial when it was made.' It was nevertheless admissible.

We do not believe it is essential that we should consider any of the other questions discussed by counsel.

AFFIRMED.