McFarland v. Folsom & Co.

Beck, J. — I. The appellees file an amended abstract, showing substantially that the cause was not tried as an action in equity in the court below, and that the bill of exceptions or certificate of the evidence was not filed within the [118] time prescribed — sixty days — in the order of the district court, and thereon base a motion to strike the bill of exceptions and the evidence from the records. The plaintiff does not deny this amended abstract, but, as avoiding it, alleges that the case was tried upon written evidence; but shows in his- supplemental abstract that three witnesses were examined orally in court. It appears from the abstract that the depositions of these witnesses were taken and read upon the trial. 'Neither does plaintiff deny that the bill of exceptions or certificate was filed after the time prescribed in the judgment; but he alleges that he did not ask such time, and that a bill of exceptions was not necessary, as all excejhions appeared upon the record. II. The plaintiff insists that the case is depending in chancery,' and should be tried here de novo; and that a bill of exceptions was not necessary to make of. record and identify the evidence. We think his position is not well taken. The proceedings were at law, and there appears to be no order transferring them to the chancery side of the court. The relief sought by the intervenor is within the power of a court of law. The case seems to have been tried as a law action in the court below, and is presented to us as a law action upon errors assigned. It clearly appears that it must be regarded in this court now, and as having been from the first, an action at law. III. The plaintiff by the order of the court had sixty days in which to file his bill of exceptions. The judgment set out in the record shows this order. The plaintiff cannot, ■upon his mere statement, inqpeach this record as having been made without his request or assent. IY. A certificate of the judge of the district court, identifying the evidence, was filed after the time prescribed in the judgment. It may be regarded as a bill of exceptions. Gibbs v. Buckingham, 48 Iowa, 96; State v. Fay, 43 Iowa, 651. But the bill of exceptions must be filed within the time [119] prescribed in the order of the court; if not so filed, it will be disregarded, or stricken from the record. Gibbs v. Buckingham, supra; Hahn v. Miller, 60 Iowa, 96; Lloyd v. Beadle, 43 Iowa, 659; Lynch v. Kennedy, 42 Iowa, 220; St. John v. Wallace, 25 Iowa, 21. The bill of exceptions, or certificate, upon the intervenor’s motion, must be stricken from the record and abstract. This conclusion disposes of all objections of plaintiffs based upon the consideration of the evidence. Other objections, complaining of rulings upon evidence, are not argued by counsel. They must be regarded as waived. The judgment of the district court is Affirmed.