84 Iowa 288 | Iowa | 1892
I. The plaintiff moves to dismiss the defendant’s appeal on two grounds: First. That
The theory upon which the plaintiff urges that no bill of exceptions was filed is that the filing was at 7 o’clock p. m., after business hours, and that when filed it was at once, at the request of the plaintiff’s attorney, delivered to him, taken from the office, and has not since been returned there. It does, however, appear that it was taken by counsel for the defendant to prepare an abstract for this appeal, and was afterwards delivered to counsel for the plaintiff, but not, as they claim, until long after the abstract was completed, nor until after the .plaintiff’s ai’gument was served upon them. We think the facts show that there was a filing of the bill of exceptions within the meaning of the law. The taking of the bill from the office immediately after filing, to prepare an abstract, could not change the fact as to the filing, and the propriety of so doing could hardly be questioned. The method may have been irregular, under the rule of practice that “the original files shall be taken from the clerk’s office only on order of the judge, by leaving with the clerk a receipt for the same” (rule 1 of “Buies of Practice” adopted by the district judges); but, again, this would not change the fact as to the filing. The motion to dismiss the appeal is overruled.
II. Upon the defendant’s appeal the question for us to determine is whether or not there is evidence
It may be taken as a conceded fact in the case that the defendant, in the erection of his building, used in the wall adjoining that of the plaintiff inferior material because of the proximity of the plaintiff’s wall, and relied thereon for its protection; but, with a careful examination of the evidence, we find nothing to give support to any other use of the plaintiff’s wall by the defendant. It is, then, a question whether or not such a use renders the plaintiff’s wall one in common, so as to render the defendant liable in this action. The statute gives to contiguous lot owners in cities and towns the right when constructing buildings to so place
We think it conclusively appears from the evidence that the plaintiff’s building could be moved and leave the defendant’s without destruction or damage, that is, the building would be as perfect as it now is. The change might necessitate, for purposes of appearance and preservation, repairs or changes, but such necessity
Tbe case stands, on tbe defendant’s appeal, reversed; on tbe plaintiff’s appeal, affirmed.