Hamill v. Joseph Schlitz Brewing Co.

165 Iowa 266 | Iowa | 1913

Weaver, C. J.

I. As defendant’s right to be heard on the merits of the appeal from the judgment rendered against it in the court below is dependent on the question whether the evidence had been presented by a sufficient bill of exceptions or certified record, we proceed first to the matter of the second appeal.

1. Appeal : two ease ^docket16 mg: abstract, Appellant is here met at the threshold with the .objection by appellee that said second appeal was never separately or independently docketed by the appellant in this court, nor was a separate or independent abstract of the Proceedings for correction of the record filed therein. Relying upon such objection, appellee has himself' caused the said appeal to be separately docketed, has filed therein an abstract showing the application, the hearing, and the order of correction, and moves for an affirmance thereof. The entire record upon the application, the order made thereon and appellant’s notice of appeal were in fact filed herein as an amendment or addition to the original abstract, and appellee moves to strike the same for reasons already stated. The sole question her'e raised, as will be noted, is whether appellant may have the entry reviewed upon an abstract filed as an amendment or addition to the original abstract in the matter of the first appeal, or was he required to have it filed and treated as a separate or independent case? The proposition made on the part of the appellee finds no precedent for its support in the previous decisions of this court. Appeals from an order correcting a record below, at the instance of an appellee have been of quite frequent occurrence in recent years; and, although the practice may not have been quite uniform in that r.espect, the method pursued by the appellant in this case has been frequently, and we think quite generally, followed. There is no statute which inhibits such practice, and every consideration of simplicity and directness of procedure is in its favor. Neither party is thereby deprived of any substantial right. The record may thus be presented as fully and completely in one abstract and one docketing as in two. Both matters are phases of the same case, each being explanatory in some measure of the other as successive chapters of the same history; and, if there be any persuasive reason why the appellant should go through the form of docketing them separately, unless it be by increasing the perplexity of the proceedings to multiply the chances of some technical slip to the advantage of his adversary, it is not suggested in the briefs of counsel.

In Garner’s case, 104 Iowa, 515, there were two appeals under one docketing and one abstract. Perhaps it would be more exact to say that the records upon the two appeals were separately abstracted in a single printed volume, and we refused to strike either as'being an independent case improperly joined with the other. This would seem to be a precedent directly opposed to the rule urged by appellee, but counsel adroitly seeks to avoid its effect by saying that, while this is authority for the proposition that the abstracts upon two appeals in the same case may be bound in a single printed book and filed under a single docketing, yet appellant in this case, though filing a complete abstract upon each of its two appeals under a single docketing, has committed the grave blunder of entitling or labeling one as an “abstract” and the other as an “amendment,” and for this reason the so-called amendment should be stricken and a hearing upon the merits of the second appeal denied. We are not content to so hold. There is no such charm or finality in a misplaced word or inexact label. If “amended abstract” is not a proper title in this instance — a proposition we are not ready to admit — or if “additional abstract” or “abstract on second appeal” would have been more nearly descriptive of the real character of the document filed, it may be that the choice of the former would have been open to criticism as an incorrect appellation, but it would be an impeachment of the intelligence of counsel and court to assume there was the slightest possibility of doubt as to the real nature and purpose of the document, and it would be the extreme of unreasonableness to hold that on this account it should not be treated for just what an examination of its contents demonstrates it to be- — an abstract of the record showing the ruling sought to be reviewed and all the proceedings leading thereto. The character of the paper being clearly apparent upon its face, a slight inaccuracy in naming it is immaterial. The motion to strike tbe abstract setting out tbe record upon tbe second appeal and motion to affirm the order so appealed from because not separately and independently docketed are overruled. On a somewhat different state of facts the rule we here apply was distinctly recognized in Keller v. Harrison, 151 Iowa, 329.

II. The judgment against defendant on the directed verdict was rendered by the court on January 23,1909, and by the clerk spread at large upon the court record on February 13, 1909. Defendant’s appeal was perfected by service of proper notice on February 16,1909. Later the appellant, apparently fearing that some jurisdictional objection might be raised because of the difference between the date of rendering the judgment by the court and the date of recording the same by the clerk, served another notice of appeal therefrom. Thereafter appellant filed his abstract of the record, showing, among other things, that the evidence and proceedings of the trial were fully taken down by the official reporter of the court, and that upon conclusion of the trial the reporter’s notes thereof were duly certified by the judge and by the official reporter and filed in the office of the clerk of the court, thereby constituting a good and sufficient bill of exceptions as provided by our statute. Thereafter, and after the time for filing or amending a bill of exceptions in said cause had fully expired, the appellee applied to the trial court, as we have already mentioned, to correct the record in said cause by changing the entry of the date of filing the bill of exceptions to show that such filing was not made on January 23, 1909; it being alleged that the actual filing took place on April 26, 1909. The motion was resisted by the appellant, and the hearing was had before the court, the judge presiding being the same who presided at the principal trial and signed the certification of the record. The evidence upon the hearing was substantially as follows: It was undisputed that the shorthand notes were filed with the clerk on January 23, 1909, at which time they bore a proper certification by the reporter, but the fact whether the certificate had been signed by the judge is in dispute. It also appears that on Saturday, January 23, 1909, or not later than the following Monday, January 25, 1909, the reporter, having been requested by appellant to make a transcript of the record, took the notes from the clerk’s office for the purpose of doing such work. The transcript was made promptly, or within a few days, and delivered to appellant’s counsel. It includes a copy of the certificate to the shorthand notes, showing the same to have béen signed by both the judge and the reporter under date of January 23, 1909. This transcript was on February 3, 1909, certified to be correct by both judge and reporter. The substance of the claim made by appellee is, as already noted, that when filed with the clerk the alleged bill of exceptions was fatally defective for want of the signature of the judge, and that the signature of that official as it now appears upon the certificate was attached thereto on or about February 3, 1909, while in the possession of the official reporter, and that as the notes with the perfected certificate thereon were not returned to the clerk’s office until after the expiration of the statutory time (thirty days) allowed for filing a bill of exceptions, it was too late to save the record, and appellant is in court without a sufficient bill.

To sustain his claim as to the condition of the certificate on January 23, 1909, three of the attorneys for appellee testify that on January 23d, after the notes had been left with the clerk, they went to the office and examined the paper, and that the certificate was signed by the reporter only and not by the judge. Two of them further testify that they saw the notes again on January 25, 1909, in the possession of the reporter, and that the certificate still lacked the signature of the judge. Against this showing the appellant relies: First. On the fact that the record as it stood before the order changing it showed clearly the filing of the duly certified notes on January 23, 1909. Second. On the presumption of regularity and correctness which attaches to a court record. Third. On the fact that within ten days from that date the judge and reporter reaffirmed said record by certifying to a transcript which sets out in full a copy of the certificate to the original notes, showing thereon the signatures of both judge and reporter, and at or about the same time repeated such reaffirmation by certifying to a duplicate of said transcript containing the same matter. Fourth. The three attorneys representing the appellant on the trial testify that on January 23, 1909, after the judgment had been rendered and before Mr. Dawley, the leading counsel for the defense, left Jefferson where the case was tried, they consulted together upon the importance of being sure that their record had been properly preserved, and that to remove any doubt on the subject Mr. Dawley and one member of the associated firm went together to the clerk’s office, where they personally examined the notes and saw that they were duly filed and that the certificate thereto was signed by both the judge and the reporter. Another of associate counsel separately examined the paper and found it regular. Fifth. The clerk swears that he remembers the fact that two of counsel for the defense testifying as above came to this office on the day in question, and did call for and examine the package of shorthand notes, but he was not informed, or at least does not remember hearing, the purpose of said examination. Sixth. The reporter testifies that to the best of his knowledge and recollection the certificate was complete, with both signatures attached, when he filed the notes with the clerk. He is not able to speak with independent recollection of the specific fact, but it was his custom and method of business. He is sure that the judge’s signature was upon the certificate to the notes when he made and certified the transcript thereof on February 3, 1909. Seventh. The trial judge admits the genuineness of his signature to the certificate bearing date and filing mark of January 23, 1909, and of his signature to the certificates upon the transcript and duplicate thereof under date of February 3, 1909, but states in the record that he has not the slightest recollection of the time when or place where the signature in dispute was written.

The hearing upon plaintiff’s application as aforesaid was completed on January 21, 1910, and with the consent of counsel was taken under advisement by the eoiu-t to be decided in vacation as of the last day of the term. On April 12, 1910, in vacation the court made and caused to be filed his finding in favor of appellee and order for correction of the record. The forms and terms of that order are hereinafter set forth. The order is prefaced by a statement and discussion by the judge. After referring to the evidence offered on either side and expressing his opinion of its general meaning and effect, he proceeds to explain the circumstances attending and following the entry of the judgment, and says that on Monday, January 25, 1909, he and the reporter were in attendance upon court in Calhoun county, and on said afternoon a case was tried before him and reported by the official reporter, and the notes in said case certified by him on that day. j&eferring to the certificate so made in the Calhoun county case (which has of course, no connection with this case), the judge adds the following: •

The undersigned has taken occasion to compare the signature of the judge on the certificate in question in this case and the certificate to the shorthand notes in the case referred to in Calhoun county, as having been investigated on the 25th of January, 1909, in the afternoon thereof, and has taken occasion to examine, by aid of magnifying glass the two signatures and the ink and pen used in writing the two signatures, the one in controversy the date whereof is under investigation, and the one in Calhoun county the date whereof is fixed and known. And imder the evidence thus adduced, and as cumulative and corroborative of the testimony of the plaintiff and movent, the undersigned judge finds that as a matter of fact the certificate in question was not signed on the 23d day of January, 1909, by the judge of said court. Whatever may be said regarding the testimony of Messrs. Dawley and Howard, regarding the fact that they saw a certificate signed by the judge and reporter on the forenoon of January 23d, the truthfulness of which testimony may not be questioned, still the matter under consideration is tbe present one, to wit, the one which purports to have been signed on January 23d, and which only bore the signature of R. C. Turner, reporter.

These findings are followed by an order or judgment as follows:

It is ordered, adjudged, found, and decreed that the certain certificate attached to the alleged shorthand report of the testimony taken in this cause did not, on the 23d day of January, 1910 (1909 ?), bear or have the signature of Z. A. Church, who was the presiding judge on the trial of this cause, which signature the said certificate now bears and has. And it is ordered, adjudged, found, and decreed that the record in this cause show and contain the aforesaid correction.

This order was filed in the clerk’s office on April 14,1910, and duly recorded in the court record, and by order of the judge in the same connection it was provided that copies of the said findings and judgment entry on the motion to correct the record be sent to the counsel of the respective parties. Thereafter, on May 28, 1910, without notice to the defendant the judge appears to have reopened the proceedings and entered therein what he denominates ‘ ‘ an additional order and judgment” as follows:

As an additional order and judgment made herein on the 12th day of April, 1910, the court hereby finds, orders, adjudges and decrees as follows: The alleged shorthand report, which is referred to in the order and judgment, to which this is additional, was taken from the office of the clerk of this court on January 23, 1909, by R. C. Turner, reporter, and taken for the purpose of making a transcript of the said report. He retained said shorthand report in his possession until he returned the same to the office of the said clerk on April 26, 1909. It is therefore, ordered, decreed, and adjudged by the court that the filing entry on said shorthand report and notation of such filing on the appearance docket be added to as follows: Where it appears on said shorthand report or on said notation that said shorthand report was filed on January 23, 1909, put after the words and figures ‘January 23, 1909,’ the words ‘on which day this paper was taken from, the office of the clerk of this court by R. C. Turner, reporter.’ After the words and figures ‘April 26, 1909,’ add ‘returned to this office on April 26, 1909, by R. C. Turner, reporter, after having been in his possession since January 23, 1909.’

The appellant complains of these orders on numerous grounds which may be summarized as follows: First, that under the conceded facts the court had no authority to thus change the record, or if the court is vested with any discretion in such cases-, the order is an abuse of discretion; second, that the evidence upon the disputed questions of fact is clearly insufficient to sustain the order; third, that, the court or judge whose duty it was to sign the certificate and did sign it, having affirmed its proper filing by certifying the 'transcript thereof, thereby leading the appellant to believe and rely upon its truth and regularity, it cannot rightfully so change the record as to defeat appellant of its right to a hearing upon its appeal; fourth, that the judge by his finding shows- that after the evidence was closed he erroneously sought the aid of other evidence not offered or admitted on the hearing, to wit, the comparison of the signature on the certificate with other signatures, and a microscopical examination thereof, and that the same was a controlling factor in his decision, whereby the appellant has suffered material prejudice; and fifth, that when the judge pursuant to the submission and the consent of parties reached his decision in vacation, formulated the order or judgment entry, and caused the same to be duly entered of record and copies thereof sent to counsel as indicating the determination of the controversy, his authority and jurisdiction in the premises were exhausted, and the amendment or additional order and judgment of May 28, 1910, is therefore not only erroneous but void and of no effect.

„ . , certification ■ filtag The case has been exhaustively argued on both sides. It presents a novel question, or at least a novel phase of an old question, and we have read the record closely and followed with genuine interest the course of counsel’s learned and ingenious argument in support of the judgment changing or amending the date of the entry of filing the bill of exceptions, and we have frankly to admit that the examination leaves us with the disagreeable impression that, if the result reached below must stand, then the law at this point not only fails in its mission to establish and administer justice between men, but becomes the engine of injustice. This is said without any reflection whatever upon the trial court, parties, or counsel; for, if a proper interpretation of the statutes and the established'rules of law and practice lead to the conclusion of which appellant complains, the court is not responsible therefor, but must pronounce it without regard to its intrinsic right or wrong. But is such result necessary ? On this question difference of views may exist without disparaging the fairness or integrity of either party to the discussion.

. Let us for a moment recall the aspects of the case on the second appeal. We are here not concerned with the merits or demerits of the appellee’s claim on which he was awarded judgment in the original ease. The one question at present is that which involves the appellant’s right to have said judgment and the proceedings in which it was rendered reviewed on appeal. The right of appeal is a valuable one, and is given equally to all litigants on like conditions. For a review of the entire ease it is manifestly necessary for the court to have before it the evidence produced on the trial below. This is secured by having the same reduced to written form, properly certified and made part of the record. In other words, the evidence is to be preserved in a bill of exceptions. Under the earlier practice the procurement, settling, and filing of such bills were frequently matters of no little trouble and contention, but since an official stenographer or shorthand reporter became a part of the equipment of our courts and practically every case is reported in full and in minute detail, the Legislature has simplified the practice by making the reporter’s notes, when properly certified and filed, perform the office of a bill of exceptions. Code, Sections 3675, 3749. Stated otherwise, under our present statute and practice the reporter’s notes, certified by himself and the trial judge and filed in the office of the clerk within thirty days from the date of the judgment from which appeal is taken, constitute a bill of exceptions and make the reported evidence a part of the record. The purpose of these provisions is self-evident. The certificate of the reporter who made the notes and the judge who presided at the trial constitutes an official identification of the shorthand record made by the reporter, and the filing with the clerk in proper time is a guaranty of its due preservation. The certificate is not required to be made in court or by the court, but by the judge and reporter. It is not necessary that the certification be made at once, but it is sufficient if it be made and filed within thirty days.

3. Same: withdrawai of bm refilingrter: While the filing makes the notes a part of the records of the clerk’s office where they are to be kept and preserved, it cannot be presumed to have been the legislative intent to forbid the temporary physical possession thereof , ., , , . , , . , by the reporter to enable him to prepare a transcript if one is called for by a party to the action. It is a matter of common knowledge among lawyers and others having anything to do in these matters that these notes are practically unreadable by any person except the reporter who made them. He alone can make an adequate transcript of them. It is his certificate to the transcript of them, and not that of the clerk for which the statute provides. In many cases the making of a transcript is the work of many days and not infrequently a matter of weeks. The reporter cannot be presumed to do this work in the clerk’s office. As a matter of practical necessity he^ust be permitted, under proper regulations, to take them to his home or to his private office, or, as is the common custom, to carry them with him as he goes from court to court with the judge until he has had reasonable opportunity to complete the translation. This possession by the reporter, an officer of the court,'is a lawful one for a lawful purpose, and such taking of the notes out of the physical boundaries of the clerk’s office or of the courthouse is not a withdrawal of such document from the files in any such sense as to make it any less a proper court record than it was before it passed from the manual possession of the clerk to the manual possession of the reporter. When returned to the clerk’s office it requires no refiling to preserve its status as a record in the case. Directly in point upon this proposition, see Pollock v. Aikens, 4 S. D. 374 (57 N. W. 1).

4‘ ofUorderecOTW rectin£ record. But, coming to the question of fact whether the certificate which is attached to the notes filed January 23, 1909, showing as of that date the signatures of both judge and reporter is true or false, we are met by the objection that upon this proposition we are bound by the . , finding of the trial court. Even if it be true (which we do not admit) that this appeal is governed by the general rules applicable to the review of proceedings at law, and the findings of the trial court are to have the effect of a jury verdict, it is nevertheless also true that upon appeal we may inquire whether the findings have substantial support in the record, whether the order or judgment in question is justified by the findings of fact, whether the court erred to the appellant’s prejudice in rulings upon evidence, and whether the order or judgment appealed from is void for want of jurisdiction in the trial court. These objections are raised by appellant, and in some respects we think they are well grounded. We may here add that on different occasions this court has exercised authority to pass upon the sufficiency, of evidence to justify the correction of a record affecting the question of its own jurisdiction. Perhaps the latest instance of this nature appears in Eichmeier v. Bank, 153 Iowa, 154.

ofEbepoetee°? ticmof record0’ evidence. Of the merits of the fact question it is to be said that we have to start with a court record in due form bearing the admitted signatures of both judge and reporter, certifying in the usual and proper manner, under date of January 23, 1909, to the identity of the notes. The record shows with equal precision the filing of these notes on the day mentioned, both by the filing mark thereon and by the minute thereof in the clerk’s appearance docket. The reporter who prepared the certificate swears that according to his best recollection and belief and his uniform method and custom of performing these duties that the certificate was thus complete at the time when he filed the notes. The trial judge admits his signature, but has no recollection of the time when he subscribed this particular paper. Within ten days after that date they both executed a certificate to the reporter’s transcript, and in that transcript included a copy of the original certificate bearing date January 23,1909. Omitting for the present the oral testimony relied upon for the appellee, it would be difficult to state a case in which the strong presumption of verity which attaches to a court record could be more strongly fortified or reinforced by the admitted circumstances. Proceeding from the undisputed to the disputed testimony, we have, as we have said, the testimony of the three attorneys for the appellee who say that after the paper was filed on the 23d of January they examined the certificate, and found that it did not have the judge’s signature, and that such was its condition in the reporter’s possession on the 25th. This is met by the testimony of three of the attorneys on the other side, one of whom looked at the notes after they were filed on January 23d and saw no defect therein, after which there was a consultation between counsel on the subject, and thereupon on the same day, to satisfy themselves that the certificates had been properly made, the other two went to the clerk’s office, examined the certificate, and found it signed by both reporter and judge. The clerk corroborates them to the extent that he remembers that these witnesses did come to his office on that day and call for and examine the notes. When we give to each and all of these opposing witnesses the credit of being absolutely honest and of speaking the truth as they believe it to be with entire candor, and when in connection therewith we consider the weight of the presumption of regularity and truth which attaches to a court record made in due form and in apparent due course of the duty devolving upon the judge, reporter, and clerk, it seems to us an impossible conclusion that the heavy burden which appellee assumes in attacking a record made in due form has been sustained. Had the judge himself on reflection recalled the fact that his certificate was made at a latter date, or had he disposed of it as an issue of veracity between the witnesses, the case at this point might wear a different aspect. But he does not. On the contrary, he declares in his findings that the truthfulness of Mr. Dawley and Mr. Howard “that they saw a certificate signed by the judge and reporter on the forenoon of January 23d” is not to be questioned. If the truthfulness of these witnesses “may not be questioned,” then they did examine the notes, they did examine the certificate, and they did find it signed by the trial judge, and the conclusion reached that appellee is right in his -demand for a change of the record is inexplicable unless the key is to be found in the somewhat cryptic language with which the above-quoted statement closes, to wit, “still the matter under consideration is the present one, to wit, the one which purports to have been signed on January 23d, and which only bore the signature of B. C. Turner, reporter.” It will be noted that the concession is that Dawley and Howard saw “a certificate” signed by both judge and reporter, but that the matter now being investigated “is the present one, to wit, the one which purports to have been signed on January 23d,” etc. These expressions as illuminated by the words we have italicized suggest the thought in the mind of the judge that Dawley and Howard were in some manner self-deceived or misled by looking at some other certificate not attached to the reporter’s notes in this case, or that they did see a certificate duly signed and attached to these notes, as they said they did, but that such certificate is not identical with “the present one.” To support the first suggested interpretation that these witnesses were self-deceived there is not a word of evidence in the record. For the other suggested conclusion there would seem to be no foundation, except in the fact that if we concede all the witnesses to be right, and that when examined by Dawley and the Howards the certificate attached to the notes was duly signed by the judge, and when later examined by Salinger, "Wilson, and Albert the certificate attached was not signed by the judge, it would necessarily follow that either there were two certificates, one complete and the other incomplete, or that in some manner the one first seen had become lost or removed and another substituted therefor. But the bare fact that the testimony of reputable witnesses having equal opportunity to know the truth is diametrically opposed is not of itself sufficient ground for impeaching the good faith or veracity of either. Let us assume, as the court below no doubt did, that these men are all entirely credible, and what have we? The witnesses for appellant first examined the notes for the express purpose of ascertaining whether they were properly certified and found by the evidence of their own eyesight that the judge’s signature was" attached. The witnesses for appellee later in the day examined the certificate for the same purpose and found they were not certified or attested by the signature of the judge. Still assuming the perfect integrity of all the witnesses and the correctness of the court’s conclusion that their truthfulness is “not to be questioned,” we are forced to fall back upon the theory of an honest mistake. Now as between two sets of witnesses of equal credibility and intelligence, who examine the same certificate on the same day to ascertain whether it is signed by a certain person, who are most likely to be in error in relation to the appearance of such document — those who swear they found the signature, saw it, and read it, or those who swear that they did not find it, and that it was not attached ? The answer is obvious. It is manifestly less likely for him to be mistaken who swears that he looked for the name, found it, and read it, than for him who swears that he looked for it, did not find it, and that it was not there. Even if there were no presumption in favor of the record, and there were no direct corroboration of it in the undisputed testimony of the reporter and clerk, and no indirect support in the inability of the presiding judge to remember when or where his admitted signature was written, the testimony upon which the demand for a change of the record is based so clearly lacks the clear preponderance which the law requires to justify such relief that a special finding by a jury impeaching the record could not, as we have already intimated, be permitted to stand.

6. SA3iE:»M«ne vro tunc The authority of the court to remake a record once entered by the proper officer, and especially where that record is duly attested by the admitted signatures of the officer or officers whose duty it is to make the same, is , ~ , ... not unlimited. On the contrary, it is very restricted, and entries nunc pro tunc will not be ordered except when it can be done without injustice to either party whose rights are thereby affected. Mitchell v. Overman, 103 U. S. 65 (26 L. Ed. 369).

„ record":“ev? dence' The statute permitting the correction of a court record made at a previous term limits the authority to cases of ‘ ‘ evident mistake” (Code section 244); not possible mistake or even probable mistake, but evident mistake, That only is “evident” which is clear, noticeable, apparent to observation, or, to put it in its most favorable form for the appellee, that which is clearly established by the evidence. It would be folly to say that this alleged mistake was evident, or that it has been clearly established by the evidence offered on the hearing below. This situation appears to have been recognized by the trial judge. The evidence so offered and introduced did not satisfy him that the bill of exceptions was not certified by himself just as the record-shows, and after the hearing and submission of the application to correct, and while having the decision under consideration, he proceeded to solve the doubt to his own satisfaction by procuring a .signature which had been made by him on January 25,1909, in another case in another county, and with the aid of a glass comparing the signature thus procured with the one in dispute. That this evidence, not offered or 'introduced on the hearing, was a decisive factor in the mind of the trial judge is shown by that part of his written finding above quoted where he says he “has. taken occasion to examine by the aid of a magnifying glass the two signatures, and the ink and the pen used in ..writing the two signatures, the one in controversy the date whereof is under investigation and the one in Calhoun county the date whereof is fixed and known. And under the evidence thus adduced and as cumulative and corroborative of the testimony of the plaintiff and movent, the undersigned judge finds that as a matter of fact the certificate in question was not signed on the 23d day of January, 1909, by the judge of said court.” Upon this the appellant assigns error, and we hold that the exception is well taken. When the hearing was closed and the question upon the application to change the record was submitted for decision, no further evidence could be introduced'in the case or taken into consideration by the court except, possibly, upon a reopening of the hearing for good cause shown and opportunity given to both parties to appear and protect their rights in the premises. If a comparison of signatures and ink and pen was of material aid in settling the controversy, as the trial judge appears to have thought, it was certainly of importance to the appellant to be represented and test the comparison by personal examination or by the testimony of experts or otherwise as should seem advisable. The court expressly treats these things as “evidence” both “cumulative and corroborative,” and declares that it is “under the evidence as thus adduced” his conclusion is reached. The judge or court in such cases, no less than the jury to which an issue of fact is submitted, is bound to determine the question in dispute according to the evidence produced upon the trial. If a jury in passing upon a disputed signature or writing of any kind should, after retiring to their room, obtain possession of another signature or writing not put in evidence, compare the respective papers with the aid of a magnifying glass, and treat the knowledge thus obtained as cumulative and corroborative evidence by which their finding is influenced, the verdict so reached would be promptly set aside. The reason for so holding is no less apparent where the court or judge admittedly commits like error.

„ 8. Couets : deci«ons ‘U?-0*1' al endings. III. The error above pointed out is sufficient to require a reversal of the judgment or order directing a change to be made in the record of the district court. But there is another aspect of the case which we think should not be overlooked. It will be observed that the order of correction, so far as it relates to the date of certification by the judge, goes no further than to say that the certificate attached to the notes did not, on January 23,1909, bear or have the signature of Z. A. Church, who was the presiding judge on the trial of the cause, which signature the said certificate now bears and has. As will be noticed, this order does no more than negative the signing of the certificate on January 23, 1909. There were still twenty-nine days after that date on which the certificate could properly have been made; and, as it is conceded not only that the notes were filed within the prescribed thirty days, and that the judge’s signature was affixed to the certificate within the same period, it follows, under the ru]e of reason and the presumption of regularity which obtains with reference to the conduct of public officers within the scope of their duties, as well as under the ruling of this court in Wilson v. Church, 60 Iowa, 112, it would still be presumed that the perfected bill was-filed within the proper time even though the date of the clerk’s entry was confessedly prior to the certification. The decision and judgment that the bill was not certified on January 23,1909, was entered, as we have seen, on April 12, 1910, in vacation, and the parties duly notified thereof. The effect of that entry, as we have jnst noted, fell short of the end sought by appellee. Thereafter, on May 28, 1910, at whose suggestion, if by any one, does not appear, the trial judge in vacation and without notice to appellant returned to the consideration of the case, and caused to be entered ‘ ‘ an additional order and judgment,” to the effect that the clerk’s record be made to show that the stenographic notes were taken out by the reporter on January 23,1909, and that they were returned to the clerk’s office on April 26, 1909. The point of this additional judgment in the estimation of the appellee is that, this fact being decided, it follows that, even if the certification by the judge was made within the thirty days, it still appears that the notes were not returned to the clerk and refiled within the period named. Whether, if this additional entry be of any force or validity, it has the effect claimed for it by the appellee, or whether a socalled refiling was necessary to the completion of the bill of exceptions, we shall not now discuss or decide, for we are of the opinion that said entry was unauthorized and void, and the case must be disposed of as if it had never been made. The authority of a judge of a court of record to hear or to decide a case in vacation is statutory (Code, section 247), and any judgment or order made by him not in term, save only as provided by statute or in pursuance to the stipulation or agreement of parties, is of no effect. The stipulation of the parties was that the matter in controversy might be decided in vacation as of the last day of that term (January, 1910), and that such decision should be accompanied by the judge’s findings of fact. The term having adjourned, the judge in pursuance of the authority thus given him proceeded in vacation, under date of April 12,1910, to make his findings of fact and formulate and sign his order or judgment thereon, directing a specified correction of the judgment. These findings and order or judgment he made or caused to be made in triplicate, one copy to be delivered to the clerk for proper entry upon the record, and one copy to each of the parties, thereby giving official notice of his conclusions in the case and. of the nature and extent of the relief granted. With this duty performed his functions as judge sitting in vacation ceased, his power under-the statute and stipulation was exhausted, and he could not, of his own motion and without notice, withdraw a decision so made and entered of record, nor could he six weeks thereafter lawfully undertake to extend or diminish its legal effect by a subsequent or additional entry without notice to all parties concerned. Even the court in session and at the same term cannot rightfully exercise such authority without notice. Ins. Co. v. Duffie, 67 Iowa 175; Townsend v. Wisner, 62 Iowa, 672. Even if it were allowable upon complaint or request of either party for the judge in vacation to reopen the matter once decided, for further consideration or for additional corrections of the record (a proposition which we by no means admit), it is too clear for argument that it ought to be done only upon notice to every party liable to be prejudiced by such proceedings. The so-called additional order and judgment of May 28, T910, must therefore be held void.

9. Bill oe exceptions : statutory com-striking' for irreguianty. Concluding this branch of the case, we may properly add that while substantial compliance with statutory provisions concerning bills of exceptions is properly insisted upon, it is the general doctrine that they will not be stricken for mere irregularities in practice, ° ' and this is especially true where the irregularity or default is that of the trial judge, or clerk, or other officer who has some duty to perform in connection therewith. Hill v. Guaranty Co., 250 Ill. 242 (95 N. E. 150); Evans v. Nail, 7 Ga. App. 129 (66 S. E. 543); Hawley v. Le Clair, 18 Wyo. 1 (102 Pac. 850); Traction Co. v. Ruthman, 85 Ohio St. 62 (96 N. E. 1019, Ann. Cas. 1913-A, 911); Mitchell v. Overman, 103 U. S. 65 (26 L. Ed. 369); Borer v. Chapman, 119 U. S. 596 (7 Sup. Ct. 342, 30 L. Ed. 532); 3 Cyc. 44, and cases cited; 3 Ency. Pl. & Pr. 474.

It is expected that the party desiring a bill shall be vigilant and attentive, but where in the exercise of reasonable care he waits upon the proper officer' having charge of the record, and finds on file that which the statute makes a bill of exceptions, and is furnished with a transcript thereof, with the certificate of the proper officers that the notes were in fact duly certified and filed within proper time, it ought not to be said that reasonable care requires him, to go behind the recórd thus made and have the judge or clerk verify it by extrinsic evidence before he can rest upon the assurance that he has a bill of exceptions. There ought to be somewhere a time and place when he may rest upon the verity of a solemn record of a court of general jurisdiction. The law and its practical administration ought to be something more than a system of traps and deadfalls.' The courts of Ohio and Wyoming have had recent occasion to consider the question (see Hawley v. LeClair, supra, and Traction Co. v. Ruthman, supra), and in each case they hold that irregularity and delay on the part of the judge in certifying a bill of exceptions prepared and ready for his signature in due time shall not bte held to affect the validity of the bill, or deprive an appellant who is chargeable with no laches in the premises of a hearing upon the merits of his appeal. The discussion of the rule in the cited cases is ,too long to be embodied herein, but they lucidly state and sustain the principle which we have announced. That the failure of an officer of the court to perform a duty should ^not be allowed to prejudice the rights of a party in no way responsible therefor was also affirmed by us in Lacey v. Newcomb, 95 Iowa, 293, although that case did not involve the matter of a bill of exceptions. See, also, 3 Cyc. 44, and the numerous cases there cited.

vende : public IY. We turn now to the principal case. The plaintiff had for a considerable period been a saloon keeper in Carroll and purchased large quantities of beer from time to time of the defendant company, doing business in the state of Wisconsin, for use m his business, and made payments therefor to the extent of about $7,000. This action was thereafter brought to compel a repayment of said sum to plaintiff on tbe ground that the sales were made to him in violation of the prohibitory law. of the state, and that under the provision pf said act money so paid in such illegal transactions is recoverable in an action at law. The action was begun and first tried in Carroll county, resulting in a verdict for defendant. On motion of plaintiff the verdict was set aside and new trial ordered, from which ruling an appeal was taken to this court. The order for a new trial was by us affirmed as being within the discretion of the trial court, the opinion therein being filed April 8, 1908. Procedendo was transmitted to the district court of Carroll county November 27, 1908. At the opening of the December, 1908, term of that court the plaintiff filed a motion for change of place of trial from Carroll county, on the ground that the inhabitants of said county were in general so prejudiced against the provisions of the prohibitory liquor law and their enforcement that he could not obtain a fair trial in that jurisdiction. The defendant contested the motion on the ground that it had not been made in the time allowed therefor by law, and because it was not alleged that the inhabitants of the county were prejudiced against the plaintiff. The objections were overruled, the motion sustained, and the cause sent to Greene county for trial. Error is assigned upon this ruling. That the allegation of prejudice was sufficiently stated we are satisfied. It is true that the statute (Code, section 3505) says, in substance, that he must allege that the inhabitants of the county are so prejudiced against him that he cannot obtain a fair trial therein. The word “prejudice,” within the fair meaning of this expression, is not to be limited to personal hatred, dislike, or ill will, but includes as well the idea of prejudgment of the merits of his claim, and this may exist although the party against whom it is directed is otherwise a person standing well in the estimation of the people of his county. If, then, it be granted that plaintiff’s claim has no legal standing except as it is found in the prohibitory statute, and such statute is peculiarly distasteful to the people of his county, and the disposition to ignore its terms or frown upon its enforcement is so general or widespread as to afford reasonable grounds to believe that a fair trial of such a claim could not be had, the court did not err in holding the showing of prejudice to be sufficient.

„ waiver1 of right It is further objected that the motion should have been denied because it was filed too late. The showing made by the plaintiff explains the failure to make the application earlier by evidence that the existénce and extent of the prejudice of which he complains was not known to him until after the first trial, and the motion was prepared and presented at the first opportunity after the first appeal had been decided and the cause remanded for new trial. The point is made by appellant that, although procedendo was not filed until November 24, 1908, it could have been procured at any time after April 9, 1908, and that as a term of the district court had intervened between these dates, it should be held that the right to move for a change of venue had thereby been lost or waived. We are not disposed to hold that as a matter of law the delay in redocketing the case for trial in the district court was such as to require a denial of the motion. It may be admitted that when the case has been once continued after the grounds for a change have come to the knowledge of the party asking it, the motion will be denied (Code, section 3506), but the failure to have the case redocketed for the October, 1908, term was not in our judgment a continuance within the meaning of the statute. A delay in redocketing, so long continued that the court could reasonably hold it negligence as a matter of law, would present a different question. It is further to be noted that an affidavit of plaintiff in support of his motion declares that he filed the same on “the first day of the first term at which this motion could be presented after it being known to him that ground existed therefor.” This would seem very clearly to bring the application within the letter as well as the spirit of the statute. The court did not err in holding the motion to be timely.

12 ‘ to pay costs? Finally, it is objected that the change was not perfected by paying the costs thereof by the morning of the second day after the motion was granted. The statute provides that the court granting a change of venue shall designate the costs of such change, or the costs rendered useless by reason thereof, and the change shall not be deemed perfected until they are paid. Code, section 3511. It is further provided that if not paid by noon of the second day, the change shall be deemed waived. Here, however, the court in its ruling sustaining ,the motion did not designate even in general terms the costs which were to be paid, or make the change conditional upon their payment. It is shown that counsel for plaintiff had a continuing arrangement or agreement with the clerk by which costs of this character chargeable to his clients were charged to said counsel’s account, and at stated intervals settlements were had between them and such items duly adjusted. It further appears that one of said counsel did apply to the clerk on the third day, and was toid that said officer did not yet know what the costs would be, but thereafter said the fees required to be paid amounted to $1, which was then and there given him. Under these circumstances there was no waiver of the change, and the court to which the cause was sent was not deprived or divested of authority to take jurisdiction thereof and try it. See Faivre’s Case, 117 Iowa, 730; Simons v. R. R. Co., 128 Iowa, 146, 147.

The objections to the change of venue being disposed of, the principal question remaining for consideration is whether the court erred in directing a verdict for plaintiff. The record shows that, the evidence having been introduced, the plaintiff moved for a directed verdict in his favor on the ground that the undisputed testimony clearly showed that the admitted sales of beer to the plaintiff were made in Iowa contrary to the prohibitory statute, and plaintiff is therefore, under the terms of said statute, entitled to a return of the purchase price admittedly paid by him. The defendant filed a motion for a directed verdict in its favor because of the insufficiency of the evidence to sustain a verdict for plaintiff, and because the sales, in controversy were transactions in interstate commerce, and if the Iowa statute is to be so construed as to permit a recovery in this case, it is void under article 1, section 8, of paragraph 3 of the Constitution of the United States. The defendant’s motion was denied and plaintiff’s motion sustained. Error is assigned upon each ruling.

13. Dikection of VBBDICT : waiver of error. It is contended for the appellee that the parties having each moved for a directed verdict, insisting that the evidence discloses no question for submission to a jury, it is equivalent to a consent that the jury be discharged and the,court shall decide or direct the verdict. In such case, it is argued, while the party against whom the decision is made may except to the conclusion reached by the court upon the merits of the case, he cannot be heard to allege error because of a refusal to send the case to the jury. This proposition has the support of many authorities, and in Bank v. Crabtree, 86 Iowa 732 that view would seem'to have been incidentally approved, but in repeated cases since that time it has been held that error in sustaining a motion to direct a verdict is not waived because the party against whom it is directed also moved for a direction in his favor. See Teeple v. Dredging Co., 137 Iowa 214; Bank v. Improvement Co., 111 Iowa 432; Walker v. Fruit Co., 113 Iowa 435. See, also, Lonier v. Bank, 153 Mich. 253 (116 N. W. 1088); Poppitz v. Ins. Co., 85 Minn. 118 (88 N. W. 438); Wolf v. Printing Co., 233 Ill. 501 (84 N. E. 614, 13 Ann. Cas. 369).

14. Intoxicating hquohs : reingse-: pleaa’ amendment. The point must be considered as settled against the position taken by the appellee, and we are required to consider whether the record shows any error in refusing to direct a verdict for appellant, or in ordering a verdict for the appellee. Except in a .single feature brought into the case by way of an amendment hereinafter referred to, both trials were had upon the same pleadings and substantially the same evidence. The amendment to the petition afterward filed alleges the fact to be that the sales were made to plaintiff under an agreement by which the title to the goods was to remain in the defendant until delivered to the plaintiff in Iowa and paid for by him. This amendment adds nothing whatever to the issues. It was alleged and claimed on the first trial that the sales were made in Iowa, and under that allegation it was competent for plaintiff to give evidence of every material fact tending to sustain that allegation, and surely if the alleged agreement has any tendency in that direction; it was admissible under the pleadings as they stood without amendment. Indeed such appears to have been the theory of counsel and court on the first trial, where the same matter was offered and admitted in evidence.

15. Appeal: secona aptRe case. In disposing of the appeal from the order granting a new trial we had occasion to consider the merits of the case as disclosed by the record, and in stating our conclusions thereon we said, “As to all sales except the first we have no doubt that the most plaintiff can claim is that he had a question for the jury.” We also refused to hold with the defendant that plaintiff had made no case for the jury. On this appeal question. is raised at the outset whether the conclusions so announced are to be treated as settled and to govern the ease on the second trial and on this appeal. Counsel for appellee say that the statement of the court in the former hearing was pure dictum, and therefore not to be regarded as authoritative in the further progress of the case. But it was not mere dictum. Appellee was then contending precisely as now that the record conclusively showed him entitled to recover, and that therefore the trial court did not err in setting aside the verdict for appellant. Appellant, on the other hand, was just as insistently contending that no ground whatever had been shown upon which a jury could properly find for the appellee. It was therefore no mere dictum or gratuitous or irrelevant expression of opinion when we said that under the record the most appellee could claim was that he had a case for the jury. The same observation is true as to appellant’s claim that a verdict should have been directed in its favor. The issues joined make a case at law triable to a jury unless that right be waived. The sufficiency of the evidence to take that issue to a jury was determined upon the former appeal, and we think it should be regarded as the law of the ease. White v. Text-Book Co., 156 Iowa 210.

16 intoxicating piare of sale • evidence. "We shall not therefore extend this opinion, already too greatly prolonged, to discuss the evidence further than to say that if necessary to pass thereon we should have to rePea^ what we sa,id on the former appeal that uPon most °£ the facts which are essential to a determination whether the sales were made in Iowa, where the plaintiff resides, or in Wisconsin, the home and principal place of business of the defendant, there is no such concession or absence of conflict in the evidence as to justify the court in refusing to submit the issue to a jury, and there was therefore material error in directing a verdict for the plaintiff. It is quite apparent that defendant had some appreciation of the risk attending sales made in Iowa, and sought, in form at least, to make the contract of sale in each instance a Wisconsin contract; the same being lawful in that state. When and where the sale was complete and title to the property passed to the purchaser is largely a question of intent to be drawn, not alone necessarily from the writings made or the formal words employed, but also from the conduct of the parties and their methods of dealing. The answer to the question is nearly always a conclusion or inference to be drawn from a consideration of all the circumstances developed by tbe evidence, and is therefore a question of fact for the jury and not of law for the court. This case is not an exception to that rule. The written evidence fairly tends to show that the contract of sale was consummated or completed in Wisconsin, and if so, this action is not maintainable. Bowlin v. Brandenburg, 130 Iowa 220; Hamilton v. Brewing Co., 129 Iowa 172; Brewing Co. v. De France, 90 Iowa 395; Brown v. Wieland, 116 Iowa 711. On the other hand, if while going through the form of a written Wisconsin contract to present a formal appearance of legality, the parties mutually disregarded or abandoned it, and the defendant thereafter sold and plaintiff bought the beer pursuant to an oral understanding or agreement which was in legal effect an Iowa contract, made in violation of the Iowa statute then plaintiff is entitled to recover. On these questions the facts are not so clearly established as to entitle either party to a directed verdict.

Tuesday, February 17, 1914.

It follows from what we have said that the judgment entered upon the directed verdict and the order and judgment changing the record as to defendant’s bill of exceptions must be reversed, and cause remanded for new trial.

Reversed on both appeals.

All the Justices concur.

SUPPLEMENTAL OPINION.

Per Curiam.

In a petition for rehearing, the appellee vigorously contends that the opinion heretofore filed in this case erroneously states the law applicable to the issues under discussion, and ignores or misstates certain material phases of the record. So far as the general merits of the controversy are concerned, the argument of the petitioner is largely a repetition or reassertion of the arguments pressed upon our attention in the original hearing, and as we are still satisfied with the views there expressed by us, we shall take no time for their re statement or further discussion. There are, however, one or two propositions1 insisted upon by counsel pertaining to matters of practice which may properly have somewhat more specific consideration.

. 17. Appeal: corora^revei-sau" remana. I. The point is made that, after reversal of the trial court’s order amending the record of a filing of a bill of exceptions, this court should have remanded the proceeding to the trial court for a retrial of that issue. The exception cannot be sustained. We may, for the purposes of this case, concede that counsel is right in his claim that the proceeding for the correction of the record is special and legal in character, and that a finding of fact therein having sufficient support in the evidence is ordinarily conclusive on appeal. It may further be conceded, for the purposes of this case, that, where such question is tried and submitted for decision in vacation, a vacation entry or order may be modified or set aside by the court at any time before the record is completed and signed. But it is still true that the right of a party against whom such an order is reversed upon appeal to have the matter remanded or retried is not without exception, and, if the record will justify it, this court may reverse without a remand and enter such order or judgment as should have been entered below. Code, section 4139. Nowhere is the exercise of this authority more appropriate than'in a collateral proceeding to amend the record pending an appeal of the principal case which is thereby suspended or delayed. Due protection of its own jurisdiction when once invoked requires this court to carefully scrutinize a belated proceeding in the trial court to so change the record as to defeat that jurisdiction and prevent a review of the judgment appealed from. If, then, the hearing in the trial court be full and complete, no offered evidence excluded, and nothing to indicate that any other or different showing could be made upon'a retrial, and this court finds that the evidence will not support an order changing the record, it will not hesitate to set it aside and make such order as we hold the trial court ought to have entered. Sound policy and a dpe regard for the efficient administration of the law demand that the settlement of such collateral controversy or other obstructive proceedings be not unnecessarily prolonged. The record in this case well illustrates the propriety of this rule. The defendant’s appeal was taken on February 16, 1909, and the abstract was prepared for the September, 1909, term of this court. "When the appeal was taken and when the abstract was filed, the record showed in unequivocal terms that the shorthand notes were duly certified by both reporter and judge showing that the notes had been duly certified and filed in proper time. In other words, the record, as it then existed in the trial court and here, showed this court to have acquired full jurisdiction to hear, try, and dispose of the appeal on its merits. Not until ten months after the appeal had been perfected and after appellant had expended time and money in the preparation of its ease for submission did the appellee (though, according to his own showing, aware from the outset of the alleged defect in the certification of the bill) for the first time raise his voice in objection and applied to the court for a change in its record, whereby the defendant should be deprived of the benefits of its appeal, and this court ousted of jurisdiction to pass upon its merits. It should go without saying that, under such circumstances, the law ought and does require that such application shall not be granted except upon proof of the clearest and most satisfactory character. Nwnc pro twm entries, except where the alleged omission or mistake is evident upon the face of the record, are not favored in law. As said by Chief Justice Marshall, such proceedings are of “so much delicacy and danger, . . . that some of us question the existence of the power.” Bank v. Dudley, 2 Pet. 522 (7 L. Ed. 496). To the same point the Minnesota court has said: “While we admit the power to amend a record after the term has passed in which it was made up, we would deprecate the exercise of such power in any case where there was the least room for doubt about the facts upon which the amendment was sought to be made.” Bilansky v. State, 3 Minn. 427 (Gil. 313).

In Mitchell v. Overman, 103 U. S. 64 (26 L. Ed. 369), the court, speaking by Justice Matthews, says: “A nunc pro tuno order should be granted or refused, as justice may require, in view of the circumstances of the particular ease.” In the opinion already filed, after a full consideration of the record, we held that the evidence did not sustain the order made by the trial court, and that the application ought to have been denied. As already indicated, the record contains all the evidence; none appears to have been excluded; there is nothing to indicate the existence of other evidence bearing upon that feature of the ease, and we think it clearly within the authority of this court to correct the error below by treating the application to amend the record as denied and disposing of the appeal in the principal case as if such amendment had never been made.

18' vERDicT°Nconsent. II. It is asserted for the appellee with much reiteration that the defendant consented to the discharge of the jury, and thereby waived the error if any in directing a verdict. This insistence can be explained only upon the theory that counsel has failed to read the record of his ease. Turning to the abstract, we find there recorded in unmistakable terms the proceedings which followed the conclusion of the testimony in the ease, to wit: (1) The plaintiff moved for a directed verdict in his favor. (2) After argument of said motion and after asking that certain evidence be stricken from the record, defendant filed a motion for a directed verdict in its favor.

Thereupon, with both of these motions pending for a ruling, the trial court proceeded to discuss the case, stating its views of the effect of the evidence and of the law applicable thereto, concluding the same as follows: “These and other reasons lead me ... to feel that this motion to direct a verdict for plaintiff ought to be sustained, and it is sustained, and the agreement of the parties to the case to the-effect that a juror be called from the box to sign a formal verdict should be waived by both plaintiff and defendant and be considered as though done is followed and no advantage to be taken by either party. The motion filed by the defendant contemporaneously with the finding as to judgment for plaintiff for a directed verdict is overruled, and defendant excepts.”

Following this ruling and announcement, which was taken down by the official reporter, the court, having stated that the finding for the plaintiff would be for the entire amount of the admitted payments by him to the defendant for the purchase of beer, except a certain designated carload, suggested that counsel agree upon the proper computation, whereupon the defendant’s counsel immediately responded: “The defendant declines to agree upon any amount, and objects to such amount being determined by the court. Defendant also excepts to the ruling sustaining plaintiff’s motion. . . . and to the order overruling defendant’s motion for a directed verdict.” This appears to have been the record at the close of January 22, 1909. On the following day a further entry appears to have been' made, which recited the impaneling of the jury, the hearing of the testimony, the presentation of a motion by each of the parties for a directed verdict, and that formality of directing the jury to return a verdict was waived and the jury therefore dismissed. Following this recitation, the court proceeds to state certain findings of a fact concerning the dealings between the parties, and concludes with an entry of judgment for the plaintiff for $10,346, with interest and costs. In other words, the motion to direct a verdict for plaintiff was expressly sustained, and defendant’s motion for a directed verdict expressly overruled, both on January 22, 1909. There is nowhere in the record any statement of consent by the defendant to a discharge of the jury, nor of any act or concession which implies any consent. It is true that, after the ruling was made which took from the jury all right to further consider the case, and it had no further function to perform therein, except the liability of one of its members to be called to the desk to sign a formal verdict registering the mandate of the court, it does appear that the parties consented that this formal act of calling of a juror to put his name to the verdict should be waived and “considered as though done,” and that no advantage of such informality should be taken by either party. Whether the jury were discharged at that time or the formal order was delayed until the following morning was immaterial. It is enough that, without a waiver or consent of any kind, the court first sustained the plaintiff’s motion for a directed verdict. This left defendant’s motion for a verdict without anything on which to operate. The case was at an end except the perfunctory act of signing a verdict and the entry of judgment. The consent that the directed verdict should be treated as though formally signed can by no subtlety of reasoning be said to be a consent to the act of the court in refusing to submit the case to the jury on its merits.

The claim of appellee that appellant either expressly or impliedly waived its right to a jury or its right to insist upon the error in directing a verdict is wholly without merit. The opinion as heretofore announced is therefore adhered to. All the Judges concurring.