185 Iowa 1381 | Iowa | 1919
“Witness my hand at Keokuk, Iowa, this 12th day of Oct. 1917.
“ (Not signed) -
“Judge, District Court.”
After the motion to strike had been filed in this court, and on August 22,1918, Judge Hamilton, who tried the case below, put his name to the then unsigned certificate attached to the shorthand notes, together with the following written statement, which appears thereon: “Actual date of signing, August 22, 1918, but signed as of date October 12, 1917.” This was approximately ten months after the decree was entered. Code Section 3652, as amended in 1906, by the thirty-first general assembly, provides:
“In equitable actions wherein issues of fact are -joined, all the evidence offered in the trial shall be taken down in writing, or the court may order the evidence, or any part thereof, to be taken in the form of depositions, or either party may, at pleasure, take his testimony, or -any part thereof, by deposition. All the evidence so taken shall be certified by the judge at any time within six months after the entry of a final decree, and the evidence and certificate be made a part of the record, and go on appeal to the Supreme Court, which shall try the -case -anew. But this section shall be so construed as to include the evidence taken in short
“That courts may order a correction of their records of
The statute, Section 3652, provides that all the evidence taken shall be certified, etc. In Co-Operative Bank v. Meldrum, 128 Iowa 694, counsel for appellants claimed that, as
“One trouble with this contention is that the abstract of appellant makes it -appear that, in addition to the agreed statement, the depositions of witnesses were taken and used upon the trial. The materiality of the evidence so taken is not material to the question we have to consider. Moreover, the agreed statement of facts submitted to the court amounted to no more than a matter of evidence, and as the same was not certified and proved, as required by law, and especially as the same does not appear to have been filed, we have no means of identifying the evidence, or 'of determining whether all thereof is properly before us.”
It is quite clear to us that a part of the evidence, at least, has not been properly preserved; and, should it be admitted that the part covered by the agreed statement of facts could be considered, yet we may not try the case de novo with only a part -of the evidence before us. It might be -difficult sometimes to determine whether the evidence on one issue was or was not material, -and its bearing on other-issues and other evidence, w-hen we do- not have all the evidence. No questions are presented or argued which could be determined without the evidence. The motion to strike is well taken, at least as to a part of the testimony, and since there is nothing before us to consider on the merits of the appeal, it follows that the decree must be, and it is. — Affirmed.