Cornell v. Cornell

Rothkook, J. 1. practice: eqíiTtaWe tirícato o£°er" evidence. I. Counsel for appellees makes the question that the plaintiff is not entitled to a trial de novo in this court. In this we think he is correct. The only-j apPe£d of which we have jurisdiction is that taken from the decree. The appeal from the order over- ■ ruling the motion for a new trial was not per'-: fected — no notice having been served upon the clerk of the District Court. The decree was filed November 7, 1878, and appeal taken March 9, 1879. August 18, 1879, Hon. E. L. Burton, judge, made his certificate to the evidence which was introduced upon the trial. [368] Chapter 145, Acts of 17th General Assembly, provides as follows: “ But in equitable actions wherein issue of fact is joined, all the evidence offered in the trial shall be taken down in writing, or the court may order the evidence, or any part thereof, to be taken in the form of depositions, or either party, at pleasure, may take his testimony, or any part thereof, by deposition. All the evidence so taken shall be certified by the judge in term or vacation, be made a part of the record, and go, on appeal, to the Supreme Court, which shall try the case anew.” This cause was tried at the August term, 1878. The Act of the 17th General Assembly was then in force. Whatever may be thought of its application, as to the method of trial of pending actions, there can be no doubt that the final part of the act, requiring the judge to certify the evidence in term or in vacation, applied to actions pending, because it is a mere regulation prescribing the manner of authenticating the record for appeal to this court, and. in no manner changes the method of trial in the court below. The certificate was not only not made at the term at which the cause was tried, nor in the next vacation, nor was it made by the same judge who tried the cause, but by his successor in office. We think this was clearly insufficient. The statute, in fixing the time within which the certificate must be made, does not provide that it may be done at any term of the court, nor in any vacation. The fair construction of it is that it must be made at the term at which the cause is tried, or in the vacation succeeding that term. Any other construction would enable a party appealing for mere delay to unreasonably postpone the trial, upon appeal, in this court. There is nothing inconsistent in the rule here announced with Schmeltz v. Schmeltz, 52 Iowa, 512. It is there determined that the right to a trial in a manner secured by statute is not taken away by the repeal thereof. In this case the certificate of the judge to enable a party to appeal in no way affected the manner of the trial. Indeed, we think if section [369] 2742 of the Code, for which the Act of the 17th Genera] Assembly is a substitute, were'still in force, the certificate in this case would be insufficient, because not made by the trial judge, nor in reasonable time. II. Appellant lias assigned error, but as the evidence has not been preserved by bill of exceptions, prepared and signed within proper time, there is nothing before us to determine, as all the material errors alleged pertain to the evidence upon which the decree is founded. See Gibbs v. Buckingham, 48 Iowa, 96. Affirmed.