81 Iowa 208 | Iowa | 1890
The motion for judgment, which is the basis for the order of the court appealed from, presented the question, whether or not-the plaintiff had so complied with the order for payment of costs as to be entitled to a new trial. Affidavits were filed by the parties for and against the claim that they had not been paid. The amount of the costs to be paid was thirty-nine dollars and ten cents, and in the clerk’s office is his (the clerk’s) receipt for that amount, dated April 11, 1889. It is, however, a fact, that the money was not at that time, nor for sometime thereafter, actually paid to the clerk ; and, as much in the affidavits, is directed to this particular point, we need not incumber the opinion with their production. At the request of the court the clerk prepared and filed the following affidavit to be considered in disposing of the motion :
“I, E. H. Allison, clerk of the district court of Iowa, in and for Grundy county, do state that the ¡following are the facts, as to the costs ordered paid in the
Nothing more is claimed by appellant than that the money for the costs was not actually paid to the clerk before the filing of his motion for judgment, and such fact must be -found in his favor. We then meet the question if such actual payment is absolutely essential to a compliance with the order. It is true that such an. arrangement had been made that the clerk had entered in the records of the court his receipt for the money. Just what the understanding was between the plaintiff and the clerk is somewhat in dispute, but the evidence is such, that the district court may have found that the plaintiff had made such an arrangement that the costs would have been paid at any time to any party entitled thereto on demand. No demand for costs was at any time made, nor were they in any manner called for. There were inquiries if the money had been “actually received,” but such inquiries seem to have been for other purposes than to obtain the money. Now, as a test of the actual necessity for the payment of the
We have not set out all the testimony from which the district court could have found the fact as to the costs being provided for, nor is' it necessary. It is not the doubtful question in this case. It was the judgment of the district court that the plaintiff should have a new trial upon the conditions named ; and it seems also to be its judgment that the plaintiff has so complied with the conditions that the trial should not now be denied. We are unable to discover any prejudice to the defendant in the rulings, and the action of the district court in refusing the motion for judgment is affirmed.