Loomis v. McKenzie , 48 Iowa 416 ( 1878 )

Beck, J.

I. A demurrer to the petition was overruled. This decision is made the ground of an objection by defendant. Plaintiff insists that, as defendant did not stand on his demurrer'in the court below, the objection raised will not be considered here. The question of defendant’s right to dispute the correctness of the ruling on the demurrer in this court is of no practical importance. The demurrer strikes at the very right of plaintiff to the relief sought, on the grounds stated in the petition. All questions raised by the demurrer, therefore, will be considered in reviewing the action of the court in granting a new trial. The ruling upon the demurrer need not be considered.

II. Upon proof of the facts alleged in the petition, the court set aside the decree, and granted a new trial. Is this decree justified by the evidence and the law ? The determination of this question demands our attention.

It is insisted by defendant that, by the appeal taken by plaintiff, the District Court was deprived of jurisdiction in the case, which could not be restored by the notice given to the other party and the clerk of the withdrawal of the appeal. As the case will be disposed of upon another ground, the questions presented in this position will not be considered.

We are brought to consider the correctness of the decision of the court below upon the facts of the case as presented by the record.

A dispute arises between counsel which relates to an amended abstract and a motion to strike out the same. The abstract shows that, in passing upon the question of plaintiff’s right to a new trial, the District Court “found and decided that the decree was just and correct. ” The amended abstract shows that “it was not decided upon the trial (for a new trial) that the decree and judgment were just and correct. ” The correctness of the decree seems not to have been passed upon in granting the new trial.

The question as to the contents of the record before us, or rather what it should contain, "we will not consider, for the reason that our conclusion will be the same whether we regard the record as presented either by plaintiff or defendant to be the true one. We will, therefore, consider the ease upon the amended abstract, conceding, without deciding, that it is correct.

1. aenoe- practice-The question is, in this view of the case, brought within this narrow limit: Was the loss of the testimony upon which the case was tried, without fault of either party, sufficient ground for setting aside the decree and granting a new trial ?

It will be observed that the petition for the new trial was filed after the term at which it was rendered. The'Code provides that this may be done, and the relief prayed for may be granted in certain cases. See section 8154. It is argued by plaintiff that, under the first and seventh paragraphs of this section, authority is found for the proceeding and order under consideration. The first is that new trials on petition may be granted “within the time and in the manner prescribed by the section on new trials,” being section 2837. The seventh is that new trials upon petition may be granted “for unavoidable casualty preventing the party from prosecuting or defending. ”

Section 2837 contains no provision applicable to the case before us. It cannot be so construed as to authorize a new trial on account of the destruction or loss, after trial and judgment in the court below, of the written evidence upon which the case had been tried, or for the loss or destruction of any other part of the record.

The seventh paragraph of section 3154 affords no support for the proceedings. It contemplates the case of “unavoidable casualty or misfortune preventing the party from prosecuting or defending. ” It cannot be said a party is prevented from prosecuting or defending a ease by a matter occurring after judgment.'

But it may be said he is prevented from prosecuting or defending an appeal in the ease. But no such meaning can be put upon the language. It unmistakably refers to casualties which prevented the prosecution or defense at the trial upon which the judgment was entered. This view would be inconsistent, too, with plaintiff’s theory of the case. He maintains that no appeal is pending in the case. If this be true, he cannot be entitled to the relief he asks, for there is no case pending on appeal from the decree which he can prosecute. . Now there never can be an appeal if the relief be granted, for the decree will be set aside. But, if it be held that an appeal is pending, it presents but another horn of the dilemma. In that case the District Court had no jurisdiction of the case, and could not set aside the decree.

We fail to find any foundation in the statutes for the proceeding, and to authorize the relief granted therein.

2. —:-: substitution <>£ III. It is argued that, if the statute provide for no relief, the District Court, in the exercise of its equity powers, could set aside the judgment and order a new trial, to i • t i> * secure to plaintiff relief from the consequences that would follow the loss of the testimony upon which the case was tried. That the court could grant relief to the party suffering on account of the loss of the written testimony cannot be doubted. If such relief would be secured by granting a new trial, it would impose hardship and probable loss on the other party, and relief for that reason could not be pursued in that way, certainly not when the same aid may be attained in a manner recognized by the law which would have no such inequitable results. It may be granted without prejudice to the interest and rights of the other party, by the exercise of the power conferred by law upon all courts of record, in a proper case, to supply their lost records by substituting new rolls.

The written testimony in this case which was- lost constituted a part of the record. See Code, §§ 2742, 3184, 196. The power of courts to supply, in a proper ease, their own destroyed or lost records exists independently of statute, and may be exercised whenever protection of the rights of parties demands it. See Gammon & Deering v. Knudson et al., 46 Iowa, 455; Ereeman on Judgments, § 89,. and authorities cited. The law provides a plain and direct remedy for the plaintiff, hr which his rights may be secured without prejudice to defendant. That remedy, and that alone, he can pursue in this case.

It is our conclusion that the proceedings in this case are not authorized by the law and the rules of equity. The order or decree granting a new trial is, therefore,

Reversed.