Hartnett v. City of Sioux City

Reed J. 1. AKPEAI. to supreme evidence: time. The judgment appealed from was entered on the sixteenth of April, 1884. Defendant filed an abstract in which certain evidence introduced on the trial is , set forth, but it is not alleged therein that the abstract contains all the evidence, nor is it shown therein that the evidence was certified by the j udge who tried the case. Plaintiffs filed an amended abstract, in which it is alleged that the district judge certified the evidence on the sixth of February, 1885. The correctness of this abstract is not denied. Plaintiff filed in this court a motion to strike out of the abstract what purports to be the evidence in the case, and affirm the judgment of the district court, on the ground that the evidence was not certified by the trial judge until after the expiration of the time allowed by law for taking an appeal, and it is not shown that the abstract contains all of the evidence introduced on the trial. This motion must be sustained. The district judge had no power to certify the evidence after the expiration of six months from the date on which the judgment was entered, that being the period within which an appeal from the judgment could be taken. Chapter 35, Acts of the Nineteenth General Assembly. See also Mitchell v. Laub, 59 Iowa, 36. And, as there [255] is no showing that the abstract contains all the evidence, we cannot dispose of the cause upon the errors assigned. 2. practice cour^sSpustrueci.con’ Appellant’s counsel contends, however, that the questions raised by the motion were waived by a stipulation W'hicli was signed by plaintiffs’ counsel when they accepted service of the notice of appeal. The stipulation is in the following language: “We hereby accept full, complete and legal service of the within notice this twenty-seventh of August, 1884, and agree that this cause shall be heard at the March (1885) term of the supreme court, at Council Bluffs.” It is contended that by this stipulation the parties agreed that the cause should be heard on its merits. "We think, however, that this is not its effect. In the absence of any agreement, the cause would have been for hearing at one of the fall terms of that year. The agreement by its terms continues the hearing to a later term. The six months allowed for taking an appeal had not yet expired when the stipulation was signed. The evidence might have been certified after1 the agreement was made. There . is nothing in the language made use of which indicates any intention to waive this requirement. The stipulation that the cause should be heard at the March term means no more than that it should then be heard on such questions as the parties might raise. Affirmed.