103 Iowa 542 | Iowa | 1897
I. Appellee insists that the evidence in this cause has nevér been made of the record, or in any way been properly preserved, so as to entitle this cause to be heard de novo in this court. It is said that no translation or transcript of the shorthand notes of the evidence taken in the case, and duly certified 'by said reporter, has ever been filed, and therefore we have no evidence before us. The situation, as shown by the transcript, is this: This cause was tried on oral evidence, taken in shorthand by the official reporter; also in part upon documentary evidence and written evidence. June 13, 1894, the trial judge made a proper certificate to the shorthand notes, but said reporter’s notes do not appear to have been certified by him, nor does he certify to what is claimed to be a transcript or extension of said notes into longhand. The notes appear to have been filed in time. What is claimed to be a transcript or translation of said notes into longhand, though not certified to by the reporter, was filed within the time required. The trial judge, within the time required, makes a proper certificate to all of the evidence. The case then presents this question: Can an equity case, triable de novo in this court, be so tried when the official shorthand reporter’s notes have never been certified by him, and when he has never certified to the translation of said notes? Appellant’s contention is that the certificate of the judge is all that is required. The statutes bearing upon the question are as follows: “But in equitable actions, wherein issue of fact is joined, all the evidence offered in the trial shall be taken down in writing or the court may order the evidence, or any part thereof, to be taken in the form
II. The appellee has not argued the case upon the merits, but relied upon the claim that the evidence was not made of record. We have held that the evidence is properly before us. We shall not enter into a discussion of the evidence. After carefully considering all of it, we are satisfied that the decree below should be-reversed. The evidence shows that before this defendant, or those acting for it, purchased the property of the Central Company, they insisted that the claim involved in this action should be settled. The claim was then the property of Dietz & Dietz, a firm of which this plaintiff was a member. Plaintiff authorized the other member of the firm to make a settlement of the claim, and to take stock in the new company for it; and this he did, and thus satisfied in full the obligation. The property of the old company was all turned over to the new company. The new company never became in any way liable for this debt. The claim itself, as we have said, was, with plaintiff’s consent, adjusted and settled, and he has neither a legal nor moral right to. recover. The decree below is reversed.