Kistner v. Conery

Per Oubia:m:.i Tbe case comes to us on a certificate from tbe trial judge wbicb contains a copy of tbe petition filed by tbe plaintiffs, and of tbe demurrer interposed by defendant, and tbe following record made by tbe court: “Demurrer to'petition submitted and sustained, and plaintiffs except.” There is no statement that plaintiffs elected to stand on tbeir petition, or that any judgment bas been rendered against them. There is no assignment of error, and tbe only showing with reference to- tbe appeal is, “Appeal to tbe supreme court according to- law,” following tbe certificate of tbe judge. While tbe new Code, section 4110, dispenses with many things theretofore required in a certificate for appeal where tbe amount in controversy is less than one 440 hundred dollars, yet it does not dispense with assignments of error and other matters essential to a proper presentation of appeals to this court. It must appear that we have jurisdiction, and that the questions presented are not merely moot or abstract ones; and Code, section 4136, expressly provides that no' question, shall be considered by this court in an ordinary action, unless pointed out by an assignment of error. This statute should be applied to cases coming to us on certificate; for, as the new Code does not require the-exact questions to be certified, there is more reason for holding an assignment of error necessary than there was under the Code of 1813.' "Whether an assignment was necessary under the Code of 1813 is left undecided in Bank v. Pottorfe, 96 Iowa, 354, although it is intimated that an assignment is essential to a proper presentation of the appeal'. There is nothing for us to consider, and the appeal is ms-missed.