77 Iowa 149 | Iowa | 1889
I. The appellees present the question that this case is not triable de novo in this court, for the reason that the certificate of the judge does not meet the requirements of section 2742 of the Code. The appellant’s abstract does not set out the certificate, but contains a statement with reference to it which, if true, would be sufficient. The appellees file an amended abstract, setting out the certificate, showing that the testimony is that introduced, and not that offered, on the trial. Under repeated rulings of this court, this is a fatal defect, where a trial anew is sought. In fact, we think the appellant concedes this question, as the point is first presented by appellees, and no reply is presented, nor in fact do we see how the question could be successfully met.
II. The abstract contains an assignment of errors, and no question is made of our right to try the cause on assignment of error, but' appellees insist that the assignment is insufficient. The first assignment is as follows: “Court erred in refusing to quiet plaintiff’s title against the defendants in default.” The nine other assignments present only questions of what the court should find from an examination of the testimony, and the ninth is that “the court erred in dismissing plaintiff’s petition, and rendering judgment against plaintiff for costs.” It needs no argument to show that the consideration of such an assignment would lead to a trial of the cause anew, for it could only be determined on an examination of the testimony. It is only an indirect way of leading the court to do that which it could not do directly. The other assignments are open to the same objection. They are too general. See Code, sec. 8207; Tomblin v. Ball, 46 Iowa, 190.
III. If there was error as to the first assignment, it is entirely without prejudice, as the defendants in
Affirmed.
