Cross v. B. & S. W. R. Co.

Servers, On. J. 1. PRACTICE: certificate to evidence. I. The appellee insists the evidence has not been properly certified, that all of it is not .before the court, and he moves to strike out certain certificates of the judge and clerk, because not made in time, and for other reasons. These matters will be first considered. The certificate signed by the trial judge, after his term of office had expired, will be disregarded and the motion as to it sustained. The said judge while in office signed a certificate stating “'this cause was submitted upon a written stipulation of the parties to be heard upon depositions and documentary evidence on file in this cause, and that no oral testimony was introduced by either party, and the cause was tried by the court wholly upon written evidence on file in the record.” The abstract states the clerk certified to the evidence, and the appellants insist this is sufficient, because the evidence consisted wholly of depositions and documents which were on file. It is provided by statute, “In an action by equitable proceedings, tried upon written testimony, the depositions and all papers which were used as evidence are to be certified, * * * not by transcript, but in the original form.” Code, § 3184. This section is the same as section 3512 of the Eevision and it was held in Baldwm v. Tuttle, 23 Iowa, 66, the certificate of the clerk under his official seal, that the depositions and papers used as evidence on the trial in their original form, were contained in the record, transmitted to this court, was sufficient. The same rule should prevail now, unless section 3184 of the Code has been repealed. We do not understand it to be claimed this has been expressly done, but it is insisted it has been repealed, by implication, by chapter 145 of the acts of the 17th General Assembly, which provides that equitable actions shall be tried on oral evidence taken down at the trial in writing, or in the form of depositions, and that “all the evidence so taken shall be certified by the judge in term or vacation, be made part of the record, and go on appeal to the [66] Supreme Court, which, shall try the cause anew.” Miller’s Code, § 2742. When oral evidence is introduced at the trial it can only be certified by the judge. Until this is done it does not become a part of the record. It is true it is provided all the evidence shall be so certified. But this does not repeal section 3184 of the Code or conflict therewith. When the evidence consists of depositions and papers on file either the judge or cleric may certify the same to this court. Both sections, therefore, may stand and have force and effect. II. The abstract states the evidence was certified to by the cleric, and the abstract filed by the appellees states the certificate was made by the cleric, after a term of court had intervened after the cause was decided. ' It is said the judge must certify to the evidence during the term or next vacation, and the argument is, if the judge cannot malee a certificate after the intervention of a term, the clerk cannot do so. The rule as to within what time the judge must certify is based upon a construction of section 2742 of Miller’s Code. Cornell v. Cornell, 54 Iowa, 366. But there is no such limitation on the power of the clerk. Nor should there be, for he can certify only to the record after it is prepared for transmission to the Supreme Court, and frequently at least a term has intervened before this is done. 2. —: abstract : evidence. III. At the conclusion of what purports to be the evidence, the abstract -states: “This is all the evidence in the case.” The abstract filed by the appellees states: “The abstract does not contain all the evidence offered, nor all introduced on the trial, nor is that which it does contain correctly abstracted.” But the appellees fail to set out any additional evidence, or show wherein it is not correctly abstracted. It is urged the statement “this is all the evidence in the case” is not sufficient, because there may have been evidence offered which was not admitted. But the judge certified all the evidence consisted of depositions, and documentary evidence on file in the record, ,and the clerk has certified the evidence on file and of record to this court. Now [67] the abstract states all the evidence is contained therein. In the absence of any showing to the contrary, this is sufficient." 3. — : repeal of statute : trial. IY. We understand it to be insisted there cannot be a trial' anew in this court, because no motion was made at the proper time for a trial on written evidence, as provided-m section 2742 of the Code. This cause was commenced when that section was in force, and upon the ground above stated, it was held on the former appeal there-could not be a trial de novo in this court. When the cause was remanded a repleader was ordered, if the parties should be so advised. New or additional pleadings were accordingly filed. At that time section 2742 had been repealed. We think the trial should be had in accordance with the statute in force at the time the new issues were joined. To all intents and purposes a new case was to be tried. 4. RAILROADS : vendor’s lien. Y. There is no evidence tending to show the plaintiff sold the defendant any real estate or anything else, except as follows: The plaintiff testifies: “I was the 0WIier 0f an interest in the lands described in the petition. The interest I owned in the lands * * * was my rights as a stockholder in the Iowa and Missouri State Line Bail-road Company, which company owned the right of way across these lands. They had partially constructed a road-bed and earthworks for a railroad thereon.. I sold my interest in the land to the Iowa and Missouri State Line Company, of which I was a director. The State Line Company subsequently became reduced to a few individuals, of which I was one, and finally became defunct and died out. The Burlington and Southwestern Eailway Company purchased lands and interest of us.” ■ The only interest the plaintiff had in the lands was such as he possessed by reason of being a stockholder ,in the State Line Company. Such interest was purchased by the Burlington Company. Individually, the plaintiff had nothing to sell except his interest, which consisted of stock in the State Line Company. It is difficult to see how a sale of his stock would entitle the plaintiff to a vendor’s lien. The real transaction [68] between tbe two companies and the plaintiff was as follows: The two companies were consolidated, and in the articles of consolidation, it was provided all contracts made by either company were assumed by the consolidated company, and stock was to be issued to persons entitled thereto in either company. As a stockholder in the State .Line Company .the plaintiff was entitled to stock in the consolidated company, and nothing more. If it be concluded he is entitled thereto now, this would not give him a vendor’s lien. But the evidence shows the notes sued on, and on which the lien is claimed, were given for stock in the consolidated company which he sold to the defendant company. Clearly we think this would not entitle the plaintiff to a vendor’s lien on the real estate of the defendant. Beversed.