Spinney v. Halliday

McClain, J. The case is now before its on the question whether the evidence has been so preserved that appellant may have a trial de novo, and, while it is not usual to file written opinions giving reasons for rulings on motions with respect to the record, it is thought that the questions here involved are such that our reasons ought to be stated. 1 On the trial of the case the evidence was taken down in shorthand by “ I. A. West, assistant to official reporter,” and the notes were certified by him and by the trial judge. But the longhand transcript of the notes, which was filed within six months, was certified to by “Charles J. Smith, official reporter.” After the expiration of six months this transcript was certified by I. A. West. The first question argued is as to whether it is essential, in order to secure a trial de novo in an equity case, that the longhand transcript or translation of the notes be filed within six months ; it being contended that Code, section 3652, with reference to taking down evidence in writing in equity causes, is sufficiently complied with when [422] the shorthand notes are duly certified by the reporter and the trial judge. There is no question but that, prior to the adoption of the Code of 1897, it was essential that the translation of the notes be filed within six months; but it is argued that the language used in Code, section 3675, relating to the reporting of the evidence in ordinary or equitable proceedings, authorizes a different construction. The point has already been decided, however, in Dwyer v. Rock, 115 Iowa, post, where we hold that the construction to be put upon Code, section 3652, is not affected by the language of Code, section 3675, and that it is still necessary, in order to secure a trial de novo, that the translation of the notes be filed within six months. The cases on the subject are referred to in the opinion in that case and they need not be again cited. 2 But the further question is now presented as to whether the certificate to the translation may be made by the official reporter when it appears that he was not the reporter who took down the evidence on the trial and certified to' the shorthand notes. While the Code provides for the appointment of official reporters (Code, sections 245, 246), yet section 3652, relating to the trial of equitable causes, does not require that the evidence in such cases be taken down by the official reporter; and in Code, .section 3749, it is said that “in equitable actions triable de novo on appeal no bill of exceptions shall be necessary, nor in other actions in which all the proceedings are under the direction of the court taken in writing or shorthand by the regular court reporter or any one appointed by the court or judge for the purpose and embodied in the 'report by such reporter certified by him and the court or judge in the manner provided in this chapter for making and certifying such report.” While by Code, section 3675, it is provided that any party shall be entitled to have reported the whole proceedings upon the trial or hearing, and it is specified at length what matter shall be rejwrted, it does not [423] appear that the provisions of that section have specific reference to the action of the official'reporter only; but, on the contrary, it is to be understood, we think, that they are applicable as well to any person properly designated by the court to take down the proceedings. It certainly must be true that the certificate to the shorthand notes is to be made by the person who actually takes down the proceedings under the direction of the court; and the question now is whether the translation of the notes must be certified by the reporter who malíes the notes, or may be certified by the •official reporter, who did not actually act as the reporter on the trial of the case. We are asked to take judicial notice of the fact that, if "the system of shorthand used by two reporters is the same, the notes of one may be read by the other, and the latter can properly translate and certify to the translation of notes made by the former, but we do not think that we have any authority for this assumption; nor does it appear in this case that the system of shorthand employed by the reporter who took down the notes of the proceedings was the same as that usually employed and understood by the official reporter. We have here simply the case of one reporter certifying to the translation of the notes of another reporter, and this, we hold, is not the certificate contemplated by law. We have held that a judge •other than the one who tried the case cannot certify to the evidence (Burnett v. Loughridge, 87 Iowa, 324, 327),'and we think that the same principle is applicable to the reporter.' Inconvenience may, indeed,- arise through inability to secure a certified translation by the reporter who took •down the testimony in shorthand; but it is probable that where it is impossible, by reason of the death of the trial judge or of the reporter, or other unavoidable casualty, to present the evidence to this court in such form as to secure .a trial de novo, a new trial may be had on proper showing. Hume v. Bowie, 148 U. S. 245 (13 Sup. Ct. Rep. 582, 37 L. Ed. 438); German Ins. Co. v. Manning, 100 Fed. [424] Rep. 581; Manning v. German Ins. Co., 46 C. C. A. 144. But whatever the inconvenience or delay may be, we do not feel justified in adopting a rule which will obviate the necessity of a certified translation by the very person who alone can be presumed to be competent to make a correct translation of the notes as. taken down. . 3 Appellant asks that, if the record be such that we cannot try this case de novo, the evidence may nevertheless be allowed to stand in the record for the purpose of passing* upon an assignment of errors as in a law case. But conceding that it is not necessary, where a case is presented here for determination on an assignment of errors, that the translation of the notes of the proceedings be certified within six months, and that there is now a properly certified translation, on which appellant’s abstract is based, yet we cannot assent to the proposition that in an equity case' the appellant may make assignments of error in rulings on the admission or rejection of evidence, and have them considered as in an action at law. We have held that rulings on motion and demurrers attacking the pleadings in an equity cause may be, and, to secure review on appeal, must be, presented by assignments of error, as in a law case; but the court is required to determine beforehand whether the case is to be tried in equity or at law, and the methods of trial in the two^ instances are distinctly different, as are also the methods of review on appeal. In an equity case the trial in this court is to be de novo on the evidence properly preserved (Code, section 3652), and there is no authority either in the statutory provisions or the decisions of this court for passing upon rulings on the evidence in response to assignments of error. Smith v. Wellslager, 105 Iowa, 140. As the assignments which appellant has made in his amended abstract relate entirely to rulings during the trial with reference to the admission of evidence, and to the sufficiency of the evidence to sustain the decree, and not to rulings made preliminary to the [425] trial on questions relating to the pleadings, such assignments cannot be considered, and the motion of appellees to strike appellant’s abstract which contains his assignments of error must be sustained. The result is that the evidence is stricken from appellant’s abstract, and appellant’s amended abstract, embodying an assignment of errors, is stricken from the kies. — Motions sustained.