Marsh v. Smith

73 Iowa 295 | Iowa | 1887

Beck, J.

I. The petition shows the execution of a deed for city lots, executed by defendant to plaintiff, with covenants of warranty, and avers a breach thereof, in that defendant was not seized of the estate and title conveyed in the deed, which were in another. It further shows the commencement of an action against plaintiff in a state court, of which defendant had notice, and the expenditure of money by plaintiff in its defense, and the prosecution of another action in the United States court, wherein a judgment was rendered against plaintiff, quieting the title of the lots in another; the same parties who had commenced the other action. The defendant, in his answer, denies the allegations of the petition.

1. appeal: practice: amended ai> straetuot denied. II. The defendant assigns as error the rulings of the circuit court in admitting and .rejecting, evidence upon the trial. But an amended abstract filed by plaintiff, which . , x is not denied, shows that the rulings complained t or of were not made; but all evidence in question was admitted subject to consideration as to its competency in the final decision of the case. The abstracts failed to show rulings on the questions of the competency of the evidence. The amended abstract not having been denied, it must be regarded as correct. The objections urged by defendant, therefore, are not sujrported by the abstracts.

2. .tudgmionp: by:0inierestea person aiding m defense. III.- Counsel for defendant insist that the transcript of the judgment of the United States court was erroneously admitted in evidence, and does not' support the judgment of the court below’, for the reason that . . , , . -, „ . it is not shown that defendant was a party thereto. The amended abstract, as we have stated, show’s that the question as to the competency of this and other evidence was reserved, to be determined upon the final decision of the case. It may be presumed that the court below held the transcript of the judgment of the United States court competent. The abstract shows that the circuit court was authorized to find that defendant had knowledge of the suit, and advised and authorized the employment of counsel to defend it for him. Being interested in the suit, and thus aiding in its defense, he was bound by the judgment rendered thereon. (McNamee v. Moreland, 26 Iowa, 96; Stoddard v. Thompson, 31 Id., 80.)

We reach the conclusion that the judgment of the circuit court ought to be

Aeeirmed.