Clinton Lumber Co. v. Mitchell

Day, Ch. J. 1. APPEAL tO supreme - denovo or upon errors. — I. We have been somewhat embarrassed in our consideration of this case, on account of the condition of the record. The causes were tried as equitable ,. . , . •• , actions, upon evidence taken down m writing. Chapter 35, laws of 1882, which is a substitute 1 ' for section 2742 of the Code, provides that all the evidence offered in the trial shall be taken down in writing, and certified by the judge within the time for an appeal, and be made a part of the record, and go on appeal to the supreme court, which shall try the cause anew. Under this provision of the statute, the record should contain not only all the evidence received upon the trial, but all the evidence offered. See Taylor v. Kier, 54 Iowa, 645. In this case the record shows that the appellants propounded questions to several of the witnesses, to which the appellees objected, and the objections were sustained, and the questions were not allowed to be answered. It therefore appears affirmatively that the record does not contain all the evidence offered. -The appellants objected to,the exclusion of the evidence offered by them, and they assign the rulings of the 'court thereon as error. The appellees insist that the case cannot be reviewed upon errors assigned, and that it cannot be tried de novo, because the record does not contain all the ■evidence offered. The provisions of the statute can be com■plied with, and the full benefits of a trial de novo can be secured, only by causing to be written down all the evidence offered. This is clearly indicated in Tayler v. Kier, supra. Still, if questions asked are not permitted to be answered, and thus made a part of the record, the defeated party must be allowed to have a review'of such rulings upon error, otherwise he would practically be denied the benefit of an appeal. [136] 2. evidence : of disinterested parties to [135] II. The intervening plaintiffs claim that S. H. Templeton [136] and his wife, Sarah A. Templeton, were engaged as partners, under the firm name of S. II. Templeton & Co., in the lumber business at Scranton: that as such ‘ ., n . , . _ partners they became indebted to the intervenors for lumber, sasb, doors, etc., sold them, and that intervenors have a right to the satisfaction of their demands out of the partnership property, which is superior and paramount to the rights of-the attaching creditors, who are creditors simply of S. II. Templeton. The principal questions which the appellants asked, and which the court rejected, sought to elicit declarations, at various times, of S. H. and Sarah A. Templeton, that they were engaged in business as partners. It is to be observed that the Templetons do not contradict their liability as partners to the intervenors. In fact the whole testimony shows that they are anxious to promote the claim of the intervenors. The whole controversy is between creditors of S. II. Templeton, and parties who claim to be creditors of S. II. Templeton & Co. Now, however competent the déclarations of S. II. Templeton and his wife might be to establish the fact of a partnership against themselves in favor'of creditors, it is evident that such declarations are not admissible to establish such fact to. the prejudice of those whose interests will he injuriously affected by tbe establishing of such partnership. As. to such persons, such declarations are hearsay. We have carefully examined all the various rulings upon the evidence complained of, and we think that no evidence was •rejected by the court which could properly be considered, or ■which, if admitted, could materially have affected the result. 3. triad do ieS° preofuded from objecting to. III. The aj>pellants insist that upon the evidence admitted they are entitled to a reversal of the case. To this the appellees reply that there can be no trial de novo, because tlie record does not contain all the evi- . dence offered. Ihe questions not answered, except in a very few unimportant instances, were excluded upon objection of appellees. Surely it does not now lie in the mouth of the appellees to object to a trial de novo, because [137] the record does not contain evidence which, was excluded upon their objection. As against them, it must be conclusively presumed that the evidence, if admitted, would have strengthened, rather than weakened, the appellants’ cause. If the appellants are willing to submit the cause for trial cle novo upon the evidence contained in the record, the objection of. the.appellees to such trial cannot, under the circumstances disclosed in this ease, be entertained. i. EVIDENCE sWpP-anotesuf fleient. _ IY. The appellants are not entitled to the relief asked, unless the fact of a partnership between S. H. and Sarah A. Templeton, in the lumber business, has been -1. 1 -I m established. .The evidence is conflicting. Alter a careful reading and.re-reading of the evidence, we.feel constrained to hold that the fact of such partnership lias not been established. It is true, the appellants all made sales to a party dealing as S. II. Templeton & Co., but none of them know who composed the firm. S. II. and Sarah A. Templeton both testify that they were partners in business. But there is much in the case to discredit their testimony. "When the stock of lumber was attached, S. II. Templeton told the officers that he did not have one cent’s interest in it, but that it belonged to one Wadleigh, who would soon replevin it. After the attachment, Sarah A. Templeton, through her attorneys,' caused to be served upon the sheriff a notice that she was the absolute and unqualified owner of the attached property, and, as such owner, she demanded the im-mediate possession thereof. There are many other circumstances which cast grave suspicion upon the claim now made, and without undertaking a review of all the testimony, which is quite voluminous, we feel impelled to say that it forces upon us the conclusion that the idea of a partnership between S. II. and Sarah A. Templeton originated in a desire to give the claims of intervenors preference over those of the attaching creditors. . [138] 6. PRACTICE in equity: in-judgment. [137] Y. The Clinton Lumber Co., Gardiner, Batchelder & Co., [138] Curtis Bros, & Oo., and O. M. Paine & Co., each asked judgment ao-ainst S. H. Templeton & Oo. for the ° amount of their respective claims, and proved the amount due them respectively, which S. IT. Templeton, as a witness, admitted to be correct. They insist that, at least, they were entitled to judgment against S. H. Templeton & Co. for the amount of their respective claims. We see no objection to the rendition of such judgments, and, at the election of the parties above named, such j udgments will be entered in this court. As S. H. Templeton & Oo. have never disputed the claim of intervenors against them, no costs will be allowed the appellants. With this modification, the judgment of the court below is Affirmed.