Conrad & Co. v. Baldwin

3 Iowa 207 | Iowa | 1856

Wright, C. J.

It first becomes material to inquire, whe* ther a paper appearing in the record, can be treated as a bill of exceptions. The cleric certifies that certain papers, which precede his certificate are a true, perfect, and complete transcript of the proceedings in this cause. After this, we find" a paper, purporting to be a bill of exceptions, which is in no . manner certified to be a part of the record — does not appear to have been filed in court — and nothing beyond the title of ' the cause, and the signature of the judge, to connect it with the proceedings in the case. Under such circumstances, we cannot treat it as a part of the record. The case must be decided without reference to it. The record, as certified to us, shows that on the 8th of April, 1856, defendant filed his answer, and leave was given to file replication. Pleas of nul tiel record, and of former recovery, are also found with the papers, but there is nothing to show when they were filed. On the 15th of the same month,- there was judgment for plaintiff on the first plea, and leave was given to file the second. On the next day, the plaintiff had judgment on the %econd plea, and then the record proceeds to state, an answer was filed. After the judgment on the first plea, plaintiff moved for final judgment, which was overruled, and the second plea permitted to be filed, and the issue on that being decided for plaintiffs, defendant filed his affidavit for a continuance, which was held to be sufficient, and the cause continued. Plaintiffs assign for error, the action of the court below, in not rendering final judgment in their favor, in permitting defendant to file his several defences, at the times and the manner above shown, and in granting the continuance. The argument is, that it was the duty of defendant to file all his pleas or defences at the same time, and that he could not, after the issue had been determined against him, or his plea of nul tiel record, file other defences, but that on the determination of such plea, plaintiffs were entitled to final judgment. However correct this position may be in a proper case, we think it has no weight under the circumstances here disclosed. The record leaves it doubtful when the defendant’s answer was filed. At one time stating it to be on -the 8th — at another, on the 16th of April. Under such circumstances, we will presume it’ to have been filed on. the day first named, for on this hypothesis, the action of the court below is clearly correct'; and every presumption should be given in favor of such action. When a record presents conflicting dates as to any fact in a case, being governed by one of which, we would find error, while by the other, there would be no error, we should be guided by the one which will sustain the judgment below. Acting upon this rule, then, it appears that defendant first filed his an-. swer, which avers payment, and afterwards filed the pleas 'named. These pleas were first properly disposed of, and thereupon plaintiffs asked for final judgment. This was refused ; and on the application of the defendant, the case was continued. To have given judgment for plaintiffs over defendant’s answer, and especially, when that was not replied to, would have been clearly erroneous. Had the answer been filed after the decision on the plea, as has been supposed in argument, the question would have been different.

The filing of the second plea, if irregular, can now make no difference. It was disposed of in favor of plaintiffs, but the answer, then on file, still precluded final judgment, as it did when the first plea was decided adverse to defendant. No objection has been pointed out to the affidavit for continuance, and we are unable to see any.

Judgment affirmed.