Woodworth v. Byerly, 43 Iowa 106

Woodworth v. Byerly

43 Iowa 106 | Iowa | 1876

Seeveks, Ch. J.

1. PRACTICE 111 coiul-^ui^of exceptions, I. The court signed a bill of exceptions setting out the evidence, the parties being unable to agree in relation thereto. It is that the bill of o exceptions signed by the court does not contain a correct statement of the evidence. This claim is made by the appellant. No bill of exceptions was signed by *108bystanders as contemplated in Sec. 2835 of the Code. But the correctness of the exceptions is impugned by affidavits which were before the court at the time the exceptions were settled. These affidavits cannot be considered by us; there is no warrant in the Code for their presentation here. If the court refuses to sign a bill of exceptions when presented or in the opinion of a party signs an incorrect one, the mode pointed out in the Code must be pursued. That is, two bystanders should be procured to sign the bill which may be supported and controverted by affidavits. The signature of bystanders not having been procured to a bill of exceptions, the defendants were authorized to treat the affidavits as nullities and decline to file any counter affidavits.

2. vendor and uient sale. II. The only remaining question is, whether the plaintiff or Sheen was the owner of the property in dispute at the time of the levy. The property consisted of wheat and oats raised by Sheen, which the plaintiff claims to have purchased in July, and applied the amount agreed to be-paid therefor on certain indebtedness due him from Sheen. The levy was made in August. Several witnesses were examined and many facts and circumstances adduced bearing on the question of good faith in the alleged sale. Sheen remained in possession of the property and there was no visible change in the ownership after the alleged sale. No one can read the testimony and say there was no evidence tending to show the sale to be fraudulent; on the contrary, there were several circumstances in the testimony which the law styles badges of fraud.

Under these circumstances we cannot disturb the finding of the court, which should have the force and effect of a verdict of a jury.

Affirmed.