143 Iowa 677 | Iowa | 1909
Though not directly involved in this appeal, a brief statement of the nature of the issue presented in the original case will tend to a clearer understanding of the merits of the several propositions argued by counsel. At one time, more or less remote, the plaintiff or its grantors owned certain lots and blocks of land in Sioux City, near, but not directly bordering upon, the
The several propositions argued by counsel may be
The identical question here raised was before this court in Loomis v. McKenzie, 48 Iowa, 416, where, after an appeal in an equitable cause had been taken, it was found that all the written evidence upon which the cause had been tried was lost without fault on the part of the plaintiff, who thereupon dismissed h-is appeal, and petitioned for a new trial. The petition was granted, and upon an appeal to this court the order was reversed. The ruling of the trial court was there sought to be sustained by reference to this same paragraph of the statute, on the theory that a loss of evidence after trial, thus preventing an effectual appeal, is an “unavoidable casualty or misfortune preventing the party from prosecuting or defending.” That construction of the statute was approved by Adams, J., in a dissenting opinion, but the majority of the court, speaking by Beck, J., held otherwise. The majority opinion says: “It cannot be said a party is pre
Moreover, we are not prepared to hold that failure to perfect a record or an appeal because of noncompliance with reasonable legislative regulations can be, excused by
By pursuing this remedy the losing party preserves his right to trial de novo on appeal, while the prevailing party is not deprived of the legitimate advantage of the decree in his favor pending the disposition of the case by the appellate tribunal. So, also, if the testimony taken and considered by the court be lost before the party has reasonable opportunity to have it made of record, we see no good reason for denying to the court the power to direct that it be retaken. No relief of this nature wTas asked by the appellees. Whatever may be the length and breadth of their inherent powers, courts are always slow to draw thereon until the party asking it has fairly and fully exhausted the remedies provided by the written laws of the land. There is nothing in the record to indicate that the witnesses testifying in the case could not have been recalled and their testimony retaken. The judge who presided at the trial, even though not able himself to reproduce the record, would easily have been able to keep the re-examination of the witnesses within the general lines observed in the original hearing, and to effect a practical perfection of the record. This of course would necessitate labor and expense, but certainly not in excess of that which would be imposed upon the parties by the granting of a new trial. It is to be admitted that counsel as witnesses testify that in their judgment a reproduction of the testimony was impracticable. If by this is meant a repetition of identical questions and answers, the view thus expressed is doubtless correct, but substantial accuracy
We conclude that the trial court erred in granting a new trial, and the order must therefore be reversed.