Buckwalter v. Craig

24 Iowa 215 | Iowa | 1868

Dillon, Ch. J.

1. record: correction of. I. Under the Revision (§ 3000, subd. 4 and § 3001), the parties consented, in open court to try the cause by the second method. It was so tried, decree passed for the plaintiff. Defendant took an appeal. The record, originally transmitted and certified, failed to show whether the trial was by the first or second method.

Pending the appeal in this court, upon motion of the plaintiff, and after notice to the defendant, the District Court ordered a nuno pro tuno entry to be made of record,^ to the effect that the parties consented at the trial term to try the cause by the second method of equitable trials. An amended record to that effect was ordered to be sent to this court. Defendant moved, in this court, to strike the same from the files, for the reason—

1. That such entry nuno pro turne by the court below was in violation of section 2667 of the Revision.

2. That, after appeal taken, the court below was deprived of the right to make any order in the cause.

Held, that defendant’s motion is not well taken. Reason: The court omitted to enter of record the consent as to mode of trial. The fact of such consent was not controverted (so far as the record shows) in the court below. Section 2667 does not deprive the court of the power to make a nuno pro tuno entry of a fact of this character. It need not be a part of the final decree. The fact that it is recited therein does not vitiate it.

Nor does an appeal so deprive the court below of jurisdiction as to preclude it from taking such action as may be necessary to correct the record of the cause.

If the correction be unwarranted, the adverse party may have this action of the court below reviewed by the appellate tribunal. This sufficiently protects his rights. If the other doctrine were sustained, the court below, after an appeal, would be foreclosed from making any entry, however palpable the omission; from correcting any record, however evident the mistake. For its jurisdiction cannot depend upon the nature of the omission to be supplied or mistake to be corrected.

2. Appeal to Supreme coubt. II. The cause having been tried by the second method, and no exceptions taken on the trial, no finding of facts made, and no bill of exceptions or certificate. ' * showing that this court has before it all of the evidence on which the cause was tried below, the decree must be

Affirmed.