Parker v. Slaughter

23 Iowa 125 | Iowa | 1867

Dillon, T.

l. practice: feilure to except. I. "We have not before us all of the data upon which the District Court acted in making the deeision from which the present appeal was pros- ... A . , r . ecuted. ihe original papers m the mam cause, including the answers of Cole, Pierce and Ault, and the depositions, were, as the bill of exceptions states, “ offered and admitted in evidence on the hearing of the present petition.” They are not before us. "We cannot know what these answers and depositions disclosed; and, in their absence, we cannot reverse the decision of the District Court. It will be presumed to be correct.. Besides, if it be assumed that the answers and depositions contained no facts relating to the right of the plaintiff to have the decree vacated, we are inclined to think thatj under the circumstances, he was not entitled to that relief. He made a similar application at the term when the cause was submitted, and the present'petition discloses no new facts. The court then refused to open the cause, and the plaintiff made no objection of record thereto, but submit ted an argument in the cause.

Being defeated, be waits until September, 1864, when he commenced the present proceeding, and proves no fact of which he had not full knowledge at the term when the cause was submitted.

2. distbiot dence:'verity entries. II. The records of the court show that the decree in the original cause was entered in term time, once as of the November Term, 1862, and again as of the November Term, 1863. A draft of the decree as thus entered is indorsed by the clerk as having been filed August 13, 1863.

On the hearing of the present petition, the bill of exceptions recites that the plaintiff introduced the record of said decree; and “ then offered to prove by a witness on the stand that the said decree was in fact filed and entered in vacation and not in term time; that the entry as of November Term, 1862, was made at some time between the 31st day of August, 1863, and prior to the commencement of the November Term, 1863, and that the entry as of the November Term, 1863, was made in fact in vacation; that both entries in the record were made in vacation ; that the records were signed prior to the entries being made; that feaid decree was made and signed in vacation when court was not in session and was never read, signed, or announced by the judge in open court or in term time, and that the journal shows a state of proceedings which are not true in point of fact and are false.” The court refused to receive this evidence and the plaintiff excepted. It is argued by the appellees5 attorneys that this ruling was correct because the record is a verity, and cannot be impeached or overthrown. It shows that the decree was entered in term time, and evidence to the contrary, it is argued, is not admissible.

"Where the decree is directly attacked by a proceeding for that purpose, we should hesitate before committing ourselves to the proposition as broadly as contended for by the appellees’ counsel.

3. — entry of decree ¡ presumption, But as we understand the bill of exceptions, the offer to prove, did not go to the extent of an offer to prove that the court in fact never made any decree in * ** term, or if made in vacation that it was never approved at a subsequent term. But the offer to prove related to the original draft of the decree marked filed August 13, 1863. Now this draft may have each time been entered by the clerk in vacation and when the court was not in session, as the plaintiff offered to prove.

And this draft of a decree may never have been read, signed or announced in court, and yet the court may have ordered, at the spring term, 1863, or at some other term, a decree for defendant.

It is not unusual for decrees ordered in term to be entered in vacation.

The proposed proof does not sufficiently negative the fact that at some term a decree was ordered by the court. If it be admitted that records may be impeached in the manner contended for by the plaintiff, the evidence must be clear, precise and satisfactory, fully overcoming, to say the least, the strong presumptions in favor of their correctness and truth.

The proposed evidence, to avail the plaintiff any thing in this proceeding, should have gone further, and he should have also offered to show that the court, or judge in term time, never ordered a decree for the defendants.

Affirmed.