Kunz v. Young

Kinne, J. I. Plaintiff claims title to the land in controversy in Webster county, Iowa, under the swamp land grant, passed by Congress on September 28,1850, ' and by "act of the General Assembly, passed in 1858, and the subsequent selection of the land as swamp land by the agents of Webster county, the sale of the same to John F. Duncombe, and deed to him by the county; also, under a tax deed of said land, by the treasurer of said county, to one A. Jacobs, of date May 28, 1870; also, under a tax deed, by the treasurer, of said county, dated April 24,1888, to F. T. Walker; also, a deed from said Walker and wife to W. G. Watters, and a deed from Duncombe and wife to said Watters, also a deed from Watters and wife to the plaintiff. Defendant claims title under the “railroad land grant” 598 of May 15, 1856, and a grant from the state of Iowa to the Dubuque & Pacific Railroad Company, and by subsequent transfer to the Dubuque & Sioux City Railroad Company, and by certification of the land by the department of the interior to the last-named company, and by quit-claim deeds from the railroad company to William Ragan, and from said Ragan to the defendant. II. In this case the appellant filed an abstract which recites that it contains “all the evidence introduced or offered on the trial of the cause.” Appellee files an additional abstract, containing many' corrections of, and additions to appellant’s abstract, and at the close thereof states: “And appellee denies that appellant’s abstract, and this additional abstract, when taken together, are, or constitute all the evidence offered or received in the trial of said cause.” To the denial appellant files no further abstract, either in denial of the additional abstract, or by Avay of reaffirmance of the • correctness of his own abstract. Appellant, however, files a transcript.. This is an equity cause, triable de novo in this court; and it is essential that it appear that we have all of the evidence before us. It has often been held that when the appellee, in an additional abstract, denies that appellant’s abstract is an abstract of all the evidence in the case, such statement by appellee will be deemed true, in the absence of a denial by the appellant. Kearney v. Ferguson, 50 Iowa, 72; Love v. Donaldson, 63 Iowa, 631 (19 N. W. Rep. 804); Acton v. Coffman, 74 Iowa, 17 (36 N. W. Rep. 774); Shattuck v. Insurance Co., 78 Iowa, 377 (43 N. W. Rep. 228); Carson & Rand Lumber Co. v. Knapp, Stout & Co. Company, 80 Iowa, 611 (45 N. W. Rep. 544); Burkhart v. Ball, 59 Iowa, 629 (10 N. W. Rep. 260), and (13 N. W. Rep. 666); Marsh v. Smith, 73 Iowa, 295 (34 N. W. Rep. 866); Foley v. Hefferon, 70 Iowa, 572 (31 N. W. Rep. 877); Chapin v. Garretson, 85 Iowa, 377 (52 N. W. Rep. 104); Fairbairn v. Haislet, 90 Iowa, 145 (57 N. W. Rep. 599 702); Hopkins v. Railway Co., 94 Iowa, 752 (64 N. W. Rep. 603); Dungan v. Railway Co., 96 Iowa, 161; Farwell v. Zenor (65 N. W. Rep. 317); Cleveland v. Atkinson, 94 Iowa, 621 (63 N. W. Rep. 465); Turner v. Steam Co., 94 Iowa, 715 (61 N. W. Rep. 415). In this condition of the record, we cannot consider the case on its merits. Goode v. Stearns, 82 Iowa, 710 (47 N. W. Rep. 893). In such a case we do not go to the transcript, but accept the statement of appellee’s abstract as correct. Brooke v. Railway Co., 81 Iowa, 504 (47 N. W. Rep. 74), and cases, cited. Some language is used by appellant, in argument, which might, perhaps, be claimed as a denial of appellee’s abstract. But a denial of an abstract in an argument is not sufficient. Agency Co. v. Bush, 84 Iowa, 272 (50 N. W. Rep. 1063), and cases cited. This disposition of the case renders it unnecessary to pass upon the motions presented. The decree below is affirmed.