127 Iowa 369 | Iowa | 1904
- I. A motion to strike all evidence from tbe record, because not properly preserved by bill of exceptions, was made by appellee and submitted with tbe case. From tbe transcript it appears that judgment was entered in tbe court below on April 18, 1900, and sixty days from tbat date was given in wbicb to prepare and bave filed bill of ex-éeptions. On June 16, 1900, a skeleton bill, signed by tbe trial judge, was filed in tbe office of tbe clerk, tbe material provisions of wbicb are as follows: “ * * * tbe following evidence was offered or introduced, and the following proceedings were bad, and tbe same were under tbe direction of tbe court, taken down by J. L. McCabe, tbe official stenographer of said court, and was by him filed with tbe clerk of said court on tbe 28tk day of February, 1900 : (Tbe clerk of said court will here insert all tbe evidence offered or introduced upon tbe trial of said matter, and all of tbe objections made thereto, and all tbe rulings of tbe court made thereon, and all tbe exceptions saved, as fully as tbe same appears in tbe original notes of J. L. McCabe, tbe official stenographer of said court, and copy and insert in full all of said notes, wbicb notes were filed in said case with tbe clerk of said court on tbe 28th day of February,- 1900, and when said notes are extended or transcribed tbe clerk will here insert tbe same in full, together with all exhibits and documentary evidence referred to and identified in said notes or transcript thereof). Tbe foregoing is all tbe evidence offered, introduced, or received upon tbe trial of said cause. * -x- * »
The latter method was here attempted to be adopted, and we think sufficient was done to preserve the evidence in the case. The finding of the notes in the clerk’s office clearly indicates that thdy were on the date marked thereon left with the clerk for filing. It is not material that no entry of such filing was made in the appearance docket or otherwise. Even if it be conceded that such entry was required, still a party cannot be deprived of his rights in such cases by the mere failure of the clerk to make the required entry. Now, while the filing of such notes without being certified would not of itself constitute a bill of exceptions, yet we see no reason why the court may not in signing a skeleton bill refer to and make such notes so filed, or a transcript thereof, a part of the record, and so authorize the insertion of the same in a transcript, to- have the same force and effect as would follow from the filing of any paper or document used upon the trial and then filed with the clerk. It follows that the motion must be overruled.
II. On June 14, 1892, Catharine Holscher filed a petition in the court below, praying the appointment of a guardian for her minor children, Dora 0., born November, 1877; Catharine M. J., born January, 1879; and Theodore B. II., born July, 1882. D. A. Gehrig is named in the petition as a suitable person, and on the date named he was appointed and qualified as such guardian. On September 13, 1893, said guardian filed his annual report from which it appears that on June 16, 1892,, there came into his hands cash to be credited to said minors in the sum of $7,196.75 each; that he had placed such sums of money in a bank, receiving therefor time certificates of deposit drawing 5 per
The judgment of the lower court is ordered modified to the extent indicated in the third division of this opinion. In all other respects it is affirmed. The petition for rehearing is overruled.— Modified and affirmed.