146 Iowa 580 | Iowa | 1909
This case has been tried three times in the district court. On the first trial there was a judgment for 'the plaintiff, which was reversed on appeal,
The pleadings were taken from the clerk’s office between the first and second trials by the defendant’s attorneys, and were lost. No substitution thereof was made before the last trial, but upon the second trial it was agreed that the issues were correctly stated in the appellant’s abstract on the appeal from the former judgment, and that such 'statement should be taken as the evidence of the issues in lieu of the original pleadings. On the last trial the pleadings were still missing. Nothing was said about the matter, however, during the trial, but the trial proceeded on the issues made by the original pleadings, and the court took its statement of the issues to the jury from a carbon copy of the statement of the issues on the second trial. In its motion for a new trial the defendant raised the point that the trial court was without jurisdiction because of the absence of the original pleadings, and now urges the same proposition here. The appellant’s claim is that, because the original pleadings were not physically before the court during the trial, the court was wholly without jurisdiction. The appellant admits that, if the court had jurisdiction, there was such a waiver on its part as to now preclude any claim for reversal because of the absence of the pleadings.
A new trial was asked because of' the alleged misconduct of one of the jurors. There was a showing that he declared his intention to find for the plaintiff, if accepted as a juror, regardless of the evidence. It is a sufficient answer to the appellant’s claim on this point to say
The appellee filed a motion to strike the appellant’s reply argument because the same was not prepared in accordance with the rules of this court, and such motion was ordered submitted with the case. It must be conceded that the argument in question does not comply strictly with •section fifty-five of the rules, and no substantial excuse has been offered for the neglect. But as it is a reply brief, and does not so flagrantly violate the rule as to merit the punishment of being stricken from the files,