Patterson v. Jack

13 N.W. 724, 59 Iowa 632

• Court: Supreme Court of Iowa
• Decided: October 20, 1882
• Status: Published

Opinion

Day, J.

The judgment was entered in this case on the 20th day of September, 1881. On the 11th day of January, 1882, the defendants filed a motion as follows: “Come now the defendants and move the court for a new trial and examination of the issues in this canse for the following causes affecting the substantial rights of the defendant, to-wit:

“1. Irregularity in the proceedings of the prevailing party by which the defendant was prevented from having a fair trial.

“2. Misconduct of the prevailing party and his attorney.

“3. Accidents which ordinary prudence could not have guarded against.

“4. Error in the assessment of the amount of recovery.

“5. That the decision is not sustained by sufficient evidence, and is contrary to law.

“6. Newly discovered evidence.”

This motion was overruled on the 22d day of Eebruaiy, 1882. On the 30th day of March, 1882, the defendant, Julia A. Jack, caused to be served a notice that she “has appealed from the judgment of the District Court in the above entitled cause.”

I. Section 3173 of the Code provides: “Appeals from the District and Circuit Courts may be taken to the Supreme Court at any time within six months from the rendition of the judgment or order appealed from, and not afterwards.” Erom the 20th day of September, 1881, when the decree in this case was filed in the court below, to the 30 th day of March, 1882, when the notice of appeal was served, is six months and ten days. The appeal was not taken in time to have a review of any of the proceedings which culminated in the decree. No trial de novo can be had upon this appeal. See Cohol v. Allen, 37 Iowa, 449.

II. If the appeal be regarded as from the order of the court refusing to grant a new trial, the order of the court below must be affirmed for the following reasons:

First. The motion was not made until nearly four months after the judgment was rendered. It was therefore too late to be considered for any cause except the last. Code, § 2838; Boardman v. Beckwith, 18 Iowa, 292; Clinton National Bank v. Graves, 48 Id., 228.

• Second. As to the last ground, newly discovered evidence, it is altogether unsupported by affidavit or otherwise.

Third. When an appeal is taken in an equity case from a ruling upon a motion or demurrer, errors must be assigned. Powers v. The County of O’Brien, 54 Iowa, 501. All of the errors assigned relate to matters inhering in the original judgment, except the last which is as follows:

“The court erred in overruling defendant’s motion for a new trial, and to modify and amend the decree.” In the motion for a new trial, six distinct grounds are relied upon. This assignment of error is not sufficiently specific. See Code, § 3207. The appeal, in so far as it is regarded as an appeal from the principal judgment, is dismissed. The order of the court overrulling the motion for a new trial is

Aeeirmed.