54 Iowa 366 | Iowa | 1880
This cause was tried at the August term, 1878. The Act of the 17th General Assembly was then in force. Whatever may be thought of its application, as to the method of trial of pending actions, there can be no doubt that the final part of the act, requiring the judge to certify the evidence in term or in vacation, applied to actions pending, because it is a mere regulation prescribing the manner of authenticating the record for appeal to this court, and. in no manner changes the method of trial in the court below. The certificate was not only not made at the term at which the cause was tried, nor in the next vacation, nor was it made by the same judge who tried the cause, but by his successor in office.
We think this was clearly insufficient. The statute, in fixing the time within which the certificate must be made, does not provide that it may be done at any term of the court, nor in any vacation. The fair construction of it is that it must be made at the term at which the cause is tried, or in the vacation succeeding that term. Any other construction would enable a party appealing for mere delay to unreasonably postpone the trial, upon appeal, in this court. There is nothing inconsistent in the rule here announced with Schmeltz v. Schmeltz, 52 Iowa, 512. It is there determined that the right to a trial in a manner secured by statute is not taken away by the repeal thereof. In this case the certificate of the judge to enable a party to appeal in no way affected the manner of the trial. Indeed, we think if section
II. Appellant lias assigned error, but as the evidence has not been preserved by bill of exceptions, prepared and signed within proper time, there is nothing before us to determine, as all the material errors alleged pertain to the evidence upon which the decree is founded. See Gibbs v. Buckingham, 48 Iowa, 96.
Affirmed.