Burrows v. Stryker

45 Iowa 700 | Iowa | 1877

Per Curiam.

A motion is made to dismiss the appeal on the grounds:

I. That the judgment has been paid off and satisfied.

II. That no transcript has been filed.

The judgment appealed from ordered a special execution to issue for the sale of certain real estate, and such execution having been issued at the instance of the plaintiff, the defendant (appellant) paid the amount of the judgment to the clerk, under protest, reserving so far as he could by such protest his right to prosecute his appeal to this court, which had been taken previous to the issuance of the execution.

The money was paid to prevent a sale of the property under the execution. We do not regard this as a voluntary payment, nor did it in any manner affect the appeal or the right to further maintain it. No transcript has been filed, but an abstract has, which counsel for appellant maintains is full and perfect. The preparation of such abstract, filing it, and docketing the cause in this court, sufficiently show good faith in taking the appeal, and the like good faith as to its further prosecution. Code; Grim v. Semple et al., 39 Iowa, 570. The appeal, therefore, cannot be dismissed, but the appellant must file a transcript if it is insisted on, and the cause be continued. A reasonable time will be allowed for obtaining a transcript.