139 Iowa 363 | Iowa | 1908
Plaintiff brought suit against defendant for a divorce. Defendant appeared and resisted the same, and upon issues duly joined the case was tried to the court, resulting in a decree granting plaintiff the relief asked. Defendant thereupon appealed to this court, and in the preparation of the case for submission here it was found that some of the exhibits offered by plaintiff, consisting in large part of letters written him by defendant, were lost, mislaid, or destroyed. Not being able to furnish us with the entire record upon which the case was tried in the district court, defendant and appellant went back to the district court, or to the judge who tried the case, with an application for an order of substitution. That the application may be better understood we here copy the prayer thereof: “ She, therefore, prays that upon presentation of this application it shall be ordered by said court or by said judge thereof that the attorneys and parties in this cause, together with such other persons as she may be advised, should be summoned to appear at a time and place .to be fixed in said order for inquiry and discovery, if possible, as to the whereabouts of said evidence, and that in the event the court shall be unable to secure the production thereof that the plaintiff be required to substitute copies of the same, or in lieu thereof proof of the character and substance of said exhibits, to the end that the court may and shall at the conclusion of such investigation certify to the Supreme Court the entire record and transcript in said cause, including the exhibits and any other evidence claimed by plaintiff to have been omitted, or in lieu thereof suitable findings as to the character and substance of such exhibits, to the end that the record of this cause may be completed for the purpose of said appeal in the Supreme Court, and for such other orders and relief as may be proper in. the premises, together with the taxation of the costs of this proceeding to the plaintiff.” This application was undoubtedly bottomed upon section 4127- of the Code, which reads as follows: “ The lower court, the Supreme
That from the evidence offered before me at this time it appears that said exhibits have been lost or mislaid, and that the same cannot now be found; that from the evidence introduced before me at this time it appears that said exhibits have not been in the hands of either the plaintiff or any of his attorneys since that date of said filing, or have they or either of them had access to them; that from the evidence before me it is impossible for me to decide' who is the party actually in fault for their disappearance. It now appears to me that said exhibits heretofore mentioned, and which are identified in the shorthand'reporter’s minutes, cannot be found upon this investigation, that no copies of the same were ever made as far as shown by the testimony, and from the testimony introduced it does not appear that the same can be substituted, for the reason that no known copies are in existence so far as shown by the testimony; nor was the evidence offered by the defendant as to the contents of said exhibits sufficient to allow accurate substitution thereof, and the undersigned judge who presided at said trial has not. sufficient recollection of the same to state the ■ character or contents thereof sufficient to make a substitution thereof. , . . The taxation of the costs of this proceeding will be referred to the district..court in regular session, and may be "brought up before said court at any time upon, five days’ notice to" the attorneys on the opposite side of the cause.-
Defendant appeals-from this order, and contends. (-1) that it is-not' sustained by the evidence; ,(2') that the'fin'd: ings were and are unauthorized; and (3) that “the judge should'have made as complete a statement of-the-nature and contents of the lost exhibits as it was possible! to- make, and certified to- such fact in án ápprbpfiaíe order, and such statement should have shown -that there -was"- ño evidence'-in
’ We must not be understood as holding that a new trial may not be granted in cases when it is impossible to supply
No error appears in the proceedings now before us, and the order must be, and is, affirmed.