APPENDIX.

NOTES OF CASES NOT OTHERWISE REPORTED.

WALKER V. PLUMMER.

PRACTICE IN THE SUPREME COURT: TRANSCRIPT: EVIDENCE: CERTIFICATE.

Appeal from Mills County.

THURSDAY, SEPTEMBER 23.

Montgomery & Scott, for the motion.

L. W. Ross, contra.

PER CURIAM. The appellee moves to affirm the judgment in this case: 1st. Because the abstract does not show that the statement of evidence therein was preserved by a bill of exceptions.

2d. That the abstract does not contain a certificate of the trial judge, to the effect that the evidence contained in the abstract is all the evidence given on the trial.

These objections are not grounds for affirming the judgment on motion, but as they raise important questions of practice which counsel have argued and request a decision upon, we will briefly do so.

Under the Code, it is only in equitable actions tried in the court below on written evidence, either in form of depositions or taken in writing on the trial, that the parties will be entitled to a trial de novo on appeal in the Supreme Court, and, in order to secure such trial, one or both of the parties should move in due time to have the cause tried on written evidence in the court below. Code, sections 2741 and 2742. In such cases, all of the evidence is to be taken up to the appellate court, not by copy, but in the

original form, and must be properly certified to be the evidence, and all of the evidence, upon which the cause was tried in the court below. Code, section 3184. The proper certificate to the original depositions, or to the evidence reduced to writing on the trial, when the evidence is thus taken, makes the same part of the record, and the case then goes to the appellate court for trial de novo, without any motion for a new trial, exceptions in the court below, or assignment of errors. Code, sections 2742, 2831; Hackworth v. Zollars, 30 Iowa, 432. No bill of exceptions is necessary in order to bring the evidence in an equity case to this court, but in all other cases, where it is sought to reverse the judgment of the court below on the ground that the verdict of the jury or the finding of the court is not supported by the evidence, all the evidence must be preserved in a bill of exceptions. This must be done within a specified time. Code, section 2831. But no definite time is fixed by the statute for certifying the evidence in an equity cause.

Under the rules of this court, the transcript in any case and also the original evidence in an equity case may be waived by the parties agreeing to the printed abstract, and whether they do so or not, they are required to abstract the pleading and evidence, and furnish it printed in this form. The rule applies in equity cases as well as in ordinary actions; it must be abstracted so as to contain that which is evidence and nothing else. It is improper to print the evidence at length, or as it was given by questions and answers, unless some question of law arises upon a question put, or when this is necessary to impeach the credit of a witness.

In all cases, therefore, where a review of the evidence is sought on appeal, the whole of the evidence must be contained in the abstract in an abridged form, and it must show that all the evidence is, in this form contained therein. Rogers v. Taylor, Oct. Term, 1873. This may be done by a mere statement of the fact. It would be improper to print, in full, the certificate of the judge or clerk.

If the fact be controverted, recourse may then be had to the original certificate, but not otherwise.

The case before us, not having been tried on written evidence below, is not entitled to be tried de novo in this court as a cause in equity. The appellant, however, assigns as error that the evidence is insufficient to sustain the finding of the court below, hence his abstract should show that it contains all of the evidence; this it does not definitely show, but may be amended so as to do so, such being the fact.

MOTION OVERRULED.

CHILDERS V. KAVANAUGH.

VERDICT: SUFFICIENCY OF EVIDENCE.

Appeal from Polk Circuit Court.

FRIDAY, OCTOBER 22.

THIS action is brought to recover for work done by plaintiff under a written contract with the defendant, upon the grading of The Des Moines, Winterset and Southwestern Railroad. The defendant pleaded a general denial and also a counter-claim. Upon a trial to a jury there was a verdict and judgment for plaintiff. Defendant prosecutes an appeal therefrom.

E. J. Goode, for appellant.

Louis Ruttkay, for appellee.

MILLER, CH. J.-The plaintiff in his petition claimed compensation for 9.913 cubic yards of earth grading on the line of the railroad, as per engineer's estimate, amounting, under the terms of the contract between himself and the defendant, to the sum of $1,982.60.

The answer of the defendant shows that he was a contractor for grading upon the Des Moines, Winterset and Southwestern Railroad, and that he had sub-let part of his contract to the plaintiff. He alleges that the plaintiff failed to complete the work undertaken within the time specified in the contract between them, and that defendant was for this reason compelled to enter upon, and complete the same at a season of the year when the doing of the work was more expensive than it would have been if performed within the time plaintiff had agreed to do it, and that defendant has been greatly damaged by the plaintiff's failure to complete the work as specified in the contract. The defendant claims that his damages and the sums paid to the plaintiff upon the work done by him exceed plaintiff's demand, for which excess judgment is demanded.

The jury returned a verdict for the plaintiff for $350.00, being $1,632.00 less than the amount of his claim.

The only question properly before us for decision is as to the sufficiency of the evidence to sustain the verdict. There were no exceptions taken on the trial to any of the rulings or instructions of the court, but appellant insists that the evidence is not sufficient to support the verdict of the jury. A motion to set aside the verdict, and for a new trial, was made by appellant and overruled, and an abstract of all the evidence is before us on appeal.

After a careful reading and re-reading of this evidence, we are unable to agree with the learned counsel for appellant. It is evident that the jury allowed to the defendant upon his counter-claim the difference between their verdict, and the amount of plaintiff's claim, and we are unable to say that the defendant was, under the evidence, entitled to more than this. The claim of the defendant is of that character that, under the evidence, we would not be justified in interfering with the verdict had it been less or more

favorable to him. What amount of damages was sustained by defendant by being compelled to complete the work undertaken by the plaintiff was exclusively a question of fact for the jury. We are unable to say that they have not fairly and honestly determined it under the evidence. The judgment will be

AFFIRMED.

THE STATE V. DANIELS.

PRACTICE IN THE SUPREME COURT: CRIMINAL LAW.

Appeal from Grundy District Court.

FRIDAY, DECEMBER 10.

AT the September term, 1871, the defendant was indicted for the larceny of a harness, valued at thirty dollars. He was arrested and gave bail for his appearance, which bail was forfeited at the succeeding term. He was again arrested, gave bail, and again made default. He was subsequently arrested, gave bail, and at the September term, 1873, was tried and found guilty, the value of the property being fixed at nineteen dollars, and he was sentenced to imprisonment in the county jail for thirty days, and to pay the costs. Defendant appeals.

E. P. Baker, for appellant.

M. E. Cutts, Attorney General, for the State.

COLE, J.-In this cause we have not been favored with an argument for the appellant, nor even an assignment of errors; but, as it is made our duty "to examine the record, and without regard to technical errors or defects which do not affect the substantial rights of the parties, render such judgment on the record as the law demands "-we have made such examination, and in our opinion the law demands that the judgment in this case shall be

AFFIRMED.

INDEX.

ACTION.

1. PARTIES: WILL. Where the possession and control of real estate is
given to the executors for the purpose of carrying out the provisions of
the will, they are authorized to maintain an action to quiet the title
thereto. Laverty et al. v. Sexton & Son, 435.

See DAMAGES, 1, 5.

HUSBAND AND WIFE, 4.

JURISDICTION, 3.

PROMISSORY NOTE, 3.

RAILROADS, 10.

STATUTE OF LIMITATIONS, 1, 2.

TAXATION, 5.

TAX SALE AND DEED, 5.

TITLE, 2, 5.

ADMINISTRATOR.

1. SALE BY: APPLICATION. An application by an executor for an order to sell
the real estate of a decedent must be made within eighteen months from
the time when he gives notice of his appointment, unless the circum-
stances of the case would justify a court of equity in making an excep-
tion to the rule, in which case the application should be made within a
reasonable time. McCrary v. Tasker et al., 255.

2.

RULE APPLIED. An application for an order to sell real estate
by an administrator de bonis non, thirteen years after the executor had
given notice of his appointment, was not made within a reasonable
time, and the order was properly refused. Id.

3. ADMINISTRATOR DE SON TORT: LIABILITY. When the widow and heirs
have appropriated all the assets of the estate prior to the appointment
of the administrator, who is thus without means for the payment of its
debts, they are liable therefor as administrators de son tort, to the extent
of decedent's property which came into their hands. Madison v.
Shockley et al., 451.