Whitmore v. Divilbis

10 Iowa 68

• Court: Supreme Court of Iowa
• Decided: November 5, 1859
• Status: Published

Opinion

Weight, O. J.

Taking the petition as true, it is certainly very clearly shown that defendant used more than ordinary diligence to perfect his appeal, by having the case duly docketed. But while this may be granted, it still remains to inquire whether his remedy is by the process selected, or whether'he should have procured some other. How it occurred that the District Court affirmed the judgment of the justice, without the production of the transcript, we are not informed. The judgment was affirmed however, and under circumstances that the defendant by being diligent in the right direction might have prevented. He could by making the showing now made, have procured a rule on the justice for a further return. This power is abundantly recognized in the Code (sections 1576, 1760, 2838). He was laboring under no disability nor was he ignorant of the facts. But with a full knowledge of all the circumstances, and though entirely competent to make known his diligence he takes no step, either before or after the affirmance, to compel the justice to supply the lost papers, or to set aside the order made. This it was his duty to do. His remedy was in this direction and not in the one selected. The demurrer should have been sustained. 1 Swift’s Dig. 790, 2 Tidd’s Pr. 1056, 2 Saunders, 100, 101a.

Judgment reversed.