Krapfel v. Pfiffner

Dillon, J. [178] Practice: in Supreme court. [177] I. The record entry recites “that this cause came on to be heard upon the answer, and cross [178] petition of Maritz Yulmer, and the issues ra[go¿ thereon by the pleadings; also, the testimony talcen by the referee, and the statement of facts agreed upon by counsel, and the court being fully advised, orders and decrees, that the cross petition of said Yulmer be dismissed.” We must affirm this decree, because the record before us does not contain the testimony taken by the i’eferee. If to be regarded as a foreclosure proceeding, and, triable by the second method (Kev. §§ 2999, 3000), it is farther to be observed, that there are no exceptions noted or preserved to any ruling or decision of the court, and on appeal, this court (§ 2999, subdiv. 3) can, in cases triable by the second method, “ try only the legal error thereof, duly presented as in a case by ordinary proceedings,” etc. We have less regret in making this disposition of the cause, since, upon the appellant’s own showing and argument, he cannot prevail unless this court shall overrule the case of Alley v. Bay (9 Iowa, 509). This we aro not prepared to do. See further, 1 Am. Law Reg. (N. S.) pp. 707, 708, and cases cited. II. Yulmer in his cross-bill, prayed in due form a judgment against Pfiffner, for the amount of his note, and a decree of foreclosure. Pfiffner answered, and admitted the execution of the note to Yulmer, and did not defend against it. Yulmer did not except to the decree, and the same must, for this reason, be affirmed; but we order it to be done without prejudice to his right to recover from Pfiffner on his note, in any action he may hereafter bring. Affirmed.