Knott v. Bessmer , 82 Iowa 752 ( 1891 )

Robinson, J.

From the record submitted in this court we infer that a considerable amount of the evidence was introduced in the district court, and a full hearing there had on the merits of the case. Although this is an equitable action, the appellee contends that the condition of the record is such that there can be no trial de novo. We have examined the abstract, and an amendment thereto, filed by the appellant, with much care, but do not find any statement or claim that the abstract submitted is a full abstract of the record in the case. A certificate which the trial judge appended to a transcript of the evidence is printed, but, as we have frequently held, that does not show that the evidence it was designed to certify is fully abstracted. Shat-tuek v. Ins. Go., 78 Iowa, 378. Since the abstract did not claim to be a full abstract of the record, it was not necessary for the appellee to file a denial in order to raise the question of its sufficiency, and he has not in any manner waived his right to do so. Aitnough we regret the necessity of. making final disposition of a case in any. other manner than upon its merits-, jet we cannot disregard the rules of practice as frequently announced by this court. Railroad v. Secor, 70 Iowa, 647 ; Walrod v. Flanigan, 75 Iowa, 366. An assignment of error lias been filed by the appellant, by which the correctness of certain rulings and findings of the district court is sought to be questioned, but the condition of the record is such that the alleged error cannot be considered. AFFIRMED.