63 Iowa 345 | Iowa | 1884
As to the last motion, it is sufficient to say that the uniform practice is not to dismiss the appeal for the reason stated, but to order a transcript to be filed, and continue the cause, if this is desired, until this can be done. As we understand, counsel for the appellee insist that, because no transcript has been filed, an absolute right exists to have the appeal dismissed. Such is not the rule; and we see no reason why the cause should be continued, because we have before us two abstracts which fully present the facts upon which the decision must turn.
The original notes of the reporter, when filed, become a part of the record. McClain’s Statutes, § 3777. The clerk may certify whatever is of record. But the abstract contains certain letters which were introduced in evidence, as appellee claims, and it is said that these are not sufficiently identified by the bill of exceptions. It is clear, we think, that the reporter’s notes are sufficiently identified, and, when filed by him, the clerk can as readily and certainly incorporate them into the transcript as the petition, or any other part of the record.
Now, the reporter “marked and identified all instruments in writing and other papers offered in evidence,” and the clerk was directed to insert in the bill of exceptions “all exhibits referred to and identified in said report.” It therefore seems to us that there cannot be any reasonable doubt or uncertainty as to what exhibits or writings were introduced in evidence. It is true, the clerk in this or any other case might make a mistake, but there would be no difficulty in correcting it. The bill of exceptions under consideration is materially different from those referred to in Hill et al. v. Holloway, 52 Iowa, 678, and Wilson v. Tenant, 61 Id., 194. If this bill of exceptions does not sufficiently identify the evidence,.then the practice of preparing skeleton bills must be abandoned. The motion must be overruled.
II. One material question on the trial was, whether the defendant and O’Connor were partners, and, if not so in fact, whether the, defendant had so acted and held himself out to the world that the plaintiff had the right to believe they were, and, so believing, had contracted with the partnership. The name O’Connor & Ware was signed to the contract by O’Connor. Evidence was introduced by both parties, and, under the instructions of the court, the jury found for the
On the trial, letters from the defendant were introduced in evidence, which tended to show that he either admitted the partnership, or at least held himself out as a partner. These letters were written to O’Connor.. Admissions of the defendant that he was a partner with O’Connor were introduced in evidence. It was shown that O’Connor introduced the de
The newly-discovered evidence is stated in three affidavits made by Hunt, Cady and Simson. The only material fact stated in the two last named affidavits is that O’Connor introduced the defendant to the affiants as his partner, and the defendant made no objection when so designated. Evidence of this same character had been given on the trial. All that can possibly be said is, that there were two more persons who would testify to the same thing precisely that had been testified to by at least two witnesses on the trial. These witnesses were in no manner impeached, and it seems to us that this evidence is so clearly cumulative as to admit of no doubt.
It is conceded by counsel for the appellee that the letter referred to by the affiant would not have been admissible in evidence, unless it appeared that it had been written by the defendant. If the newly discovered evidence is incompetent, and could not be introduced, then a new trial should not be granted. Mather v. Butler County, 33 Iowa, 250. The party moving for the new trial must make it appear that the proposed evidence is competent. But counsel say that in all probability the letter will be found, and, if it appears to have
“Especially if you find that O’Connor introduced him as his partner to one or more members of the town council, and that Ware heard O’Connor so introduce him, and made no denial of the fact, or if you find that Ware, at the meeting of the' council at which the proposition for sinking the well in question was submitted to the council, himself represented that O’Connor and himself were partners, etc.” This proposition, we think, is correct, and that there is no valid objection to the whole instruction. We regard it as favorable to the jfiaintiff, and this is true as to the sixth paragraph of*352 the charge. The' criticisms of counsel are not well founded, in our judgment. In this paragraph the jury are told what will constitute a partnership in fact, and we do not understand that it is claimed that the paragraph is erroneous as an abstract proposition, but that it is so when applied to the evidence in this case. We have considered all that has been said by counsel for appellee, and are unable to concur in the views presented in argument.
Reversed on defendant’s appeal.
Affirmed on plaintiff’s appeal.