Lowery v. Lowery

140 Iowa 498 | Iowa | 1908

Deemer, J.

i Divorce- appíete record": tnai de novo. — After the trial in the district court some of the exhibits, consisting of various letters written by defendant to plaintiff, were lost, and, it being impossible to procure the same, in order to present the case to this court defendant and appeq[ant SOught to have substitution made by the lower court or judge trying the case. The trial judge found that substitution could not be made, and on appeal to this court that finding was approved. See Lowery v. Lowery, 139 Iowa, 363. Notwithstanding this, the case is now presented upon a record which is confessedly imperfect, in that it does not contain these missing exhibits. The case is in equity, and on appeal is triable de novo. Sherwood v. Sherwood, 44 Iowa, 192; Shear v. Brinkman, 72 Iowa, 698. Where the evidence is not all before, us, it will be presumed that the decree of the trial court is correct. Dungan v. Railroad, 96 Iowa, 161; Wicke v. Ins. Co,. 90 Iowa, 4; Garner v. Pomroy, 11 Iowa, 149. Appellant’s inability to present the entire record does not change this rule. Ormsby v. Graham, 123 Iowa, 202; Loomis v. McKenzie, 48 Iowa, 416. In the absence of the exhibits introduced by plaintiff, which it is conceded contained material and relevant testimony, we would not be justified in reversing the trial court, even though it now appears that these exhibits can not be produced. Even in an equity case the presumption is that the decree entered by the trial court is correct, and if appellant is unable to produce all the testimony upon which the case was decided, the presumption in favor of the correctness of • the decree will prevail, and the action of the trial court will be sustained. This is but another way of stating that in equity cases all the testimony offered or introduced upon the trial in the lower court must be preserved and presented to this court on appeal. As we do not have all -the testimony taken upon the trial in the district court we can not hear the case anew; and, in view of the presumption which obtains in such cases the decree must be affirmed.

2. same-new trial. Something is said in argument about our reversing the decree and sending the case back for a retrial because of loss or diminution of the record. This we can not do without disregarding all settled rules of practice. The appeal here is from the decree rendered in the divorce suit, based upon the thought that the trial court was in error in rendering that decree upon the issues and the testimony offered. And the only action which we can take on this.appeal is to affirm, modify and affirm, or reverse the action of., the trial court upon a review of the testimony upon which it acted. We have no original jurisdiction in such matters. That is to say, we can not entertain an original action for a new trial of an equity case, based upon loss or diminution of the record since a previous trial. If such an action will lie it must be brought in a court of original jurisdiction, to wit, the district court, and not here. This appeal is not from an order of the district court denying a new trial; but it is an appeal of the main action, in which we are asked to try the entire matter anew upon the testimony taken in the trial court. It now appears that we do not have all of this testimony, so that there can not be a trial de novo here of the issues in the main case, or, what is the same thing, there is no such showing as would justify us in modifying or reversing the decree entered by the trial court. It will be time enough to consider whether or not defendant is entitled to a new trial because of loss or diminution of record when the matter is properly be-, fore us. Surely we are not justified, on an appeal from a decree in an equity case, in ordering' a new trial because some of the testimony, material to the issues as presented, has been lost or destroyed without fault, 'of appellee. The record is not such as to entitle defendant to a reconsideration of the case here, and if it were, we would not, in view of the presumption which exists in favor of the correctness of the decree entered by the trial court, be justified in disturbing that decree. Even were we to consider the case on the record before us, without the exhibits to' which we have referred, taking instead the notes of counsel as to what they contain, we should be constrained to hold that the decree as entered by the trial court is^ correct.

■ With the ease is a' motion for an additional allowance of temporary alimony. In view of previous allowances and the final disposition made of this action, we think this motion should be overruled, and it is so ordered.

The decree must be, and it is, affirmed.