Hakes v. Dott

54 Iowa 17 | Iowa | 1880

Adams, Oh. J.

i. practice prema'court: appeal: jurisdiction. The appellee insists that this appeal must be dismissed for want of jurisdiction in this* court, arising from the fact that no certificate of appeal was given and filed within the proper time. The , . ■ . , abstract shows that the judgment was rendered on the 7th day of October, 1879, and that the certificate was filed on the 5th day of December, 1879. When the certificate was signed does not appear.

In Hershfield & Mitchell v. First National Bank of Grinnell, 39 Iowa, 699, it was held that the certificate must be made at the time of'the trial of the cause, and then made a part of the record, so that the right of appeal should become apparent of record from the time of the rendition of judgment. See, also, Lomax v. Fletcher & Holt, 40 Iowa, 705, and Rose v. Wheeler, 49 Id., 52. Under these rulings we have to say that it does not appear to us that the certificate was either made or filed in time.

2____. costs. It is insisted by appellant, however, that no certificate was necessary, inasmuch as the damages and costs exceeded $100.

The appellant cites Uplinger v. Kettering, 43 Iowa, 483. That was an action for an injunction. The plaintiff in another action had sued the defendant, claiming $68.98, and the defendant in the same action claimed $169.25. The defendant recovered $9.89 and costsi The plaintiff in the case cited sought an injunction to restrain an enforcement of the judgment and to allow an appeal. It did not appear from the petition what costs were recovered ■ in the original action, and it was held that such being the fact the amount in controversy, as shown by the pleadings, was only $78.87. The appellant relies upon this case as holding by implication that the costs in the action in which the appeal is taken may be taken into consideration. But in the case cited the costs referred to were the costs in a former action.

In our opinion a certificate was necessary, and having been neither made nor filed in time the appeal must be

Dismissed.