McArthur v. Schultz

Given, C. J. tiloate o?er' piamreco'rf. I. Appellant’s abstract of record shows that this action was commenced at law, to recover damages for an alleged breach of covenants . °f warranty in a deed of conveyance, by reason of lands being encumbered by an unsatisfied mortgage for three hundred dollars. The defendant filed his cross-petition, alleging that plaintiff had assumed said mortgage, and that by mistake or fraud it was omitted to insert the exception of said mortgage in the deed. . The abstract shows that the case was transferred to equity, and that on November 20, 1880, the court entered the following of record in said cause, to-wit: “November 20, trial to the court, and submitted; ” and, on the following day, to-wit, November 21, the following entry was made of record by the court in said cause, to-wit: “November 21, plaintiff asks and has leave to withdraw all his claim except ten dollars’ interest, paid on encumbrance, without prejudice, and finding for plaintiff, judgment for ten dollars and costs; to all of which defendant excepts.” Defendant perfected his appeal, and assigns as errors “ the granting of leave to and permitting plaintiff to dismiss any part of his claim and cause of action sued upon on the twenty-first day of November, and after the said cause on the issues joined therein had been tried and submitted to the court on the twentieth day of November.” Appellee, in his brief and argument, denies the correctness of appellant’s abstract, but fails to file any further or additional abstract. Appellee sets out in his brief and argument what purports to be a certificate from the trial judge, showing ‘ ‘ that at the conclusion of the argument I announced that I would [366] take the matter under consideration, and give my decision later; that at that time William Gr. Thompson, one of the plaintiff’s attorneys, announced and stated to me that, in case'I concluded that no judgment could be rendered in favor of plaintiff for any greater sum than the evidence shows he had paid on the mortgage, to-wit, ten dollars, that he, said Thompson, reserved the right to dismiss without prejudice all of said claim except ten dollars, which he did before I made the final order of judgment.” This is not a certification of the record, but of matters transpiring between the attorney and judge, that are not of record. Appeals to this court are based upon the records of the cause from the court from which they are brought, and it is not competent to explain, contradict or extend the recital of the record by affidavits or certificates. See Holmes v. Budd, 11 Iowa, 186; Bartle v. City of Des Moines, 37 Iowa, 635; Pearson v. Maxfield, 47 Iowa, 136; Dedric v. Hopson, 62 Iowa, 562; Conner v. Long, 63 Iowa, 297. Appellant’s motion to strike this certificate is sustained. 2. _.equity Sot neces-uoe sary. II. Appellee’s contention is that, this case being in equity, it must be heard de novo, and that appellant has í'a^e<^ 1° present the testimony upon which the cause was submitted. Appellee having failed to file any further or additional abstract, appellant’s abstract must be taken as correct. According to that abstract, there was no decision on the merits of plaintiff’s claim other than the ten dollars from which to appeal. The appeal presents the single question as to plaintiff’s right to dismiss without prejudice at the time he did. The testimony taken on the trial is not necessary to a full understanding of the question presented to this court for decision. 3. pbactice: aftCT submission-III. It only remains to say whether upon the record, as shown in appellant’s abstract, the court erred “ permitting the plaintiff to dismiss at the time he did. The case was fully tried, and submitted on November 20, and on November 21 the plaintiff was granted leave to withdraw all [367] his claim except ten dollars’ interest on the encumbrance, without prejudice. Code, section 2844, provides that actions may be dismissed “by the plaintiff before the final submission of the case to the jury, or to the court, when the trial is by the court.” This is construed to be equivalent to a denial of a right to dismiss after such submission. Belzor v. Logan, 32 Iowa, 322. See, also, Hays v. Turner, 23 Iowa, 214; Mansfield v. Wilkerson, 26 Iowa, 482. If we were to consider the judge’s certificate, it only shows that upon final submission of the cause plaintiff’s attorney reserved the right to dismiss without prejudice,in the event the court decided against him. Such a practice cannot be sustained. The action of the district court in permitting plaintiff to dismiss is reversed, and the case is remanded for final decree upon the merits of the cause. Reversed and remanded.