Citizens' Bank v. Johnson ( 1899 )

Granger, J.-

1 I. These cases are in equity, and the record contains an assignment of errors. At the October term of this court, 1897, we sustained a motion to strike the evidence from the record, because the transcript of the notes of the shorthand reporter was not filed within six months, as prescribed by law. We also sustained a motion to •dismiss the appeal. At the January term, 1898, we sustained a motion by appellant to set aside the order of dismissal, and reinstate the cause for trial on the assignments •of error, but denied a motion to reinstate the evidence. In September, 1898, appellee filed an “Additional Abstract of Record” as to certain particulars, and appellant now moves the court to hear and determine the cases on the evidence •contained in appellant’s and appellee’s abstracts, and, if necessary, to set aside the order striking the evidence from •appellant’s abstract. The particular ground of the present motion to determine the case on the evidence is that appellee, in presenting the additional abstract, has set out matters •contained in the transcript, which was not filed, so as to be a part of the record; and it is said that, because of this act of appellee, the evidence contained in both abstracts is before this court. Reliance is placed on Wells v. Railroad Co., 56 Iowa, 520, and some other cases. Without holding that such eases control this question, we may dispose of this motion •on another ground. This motion comes to us with the case, so that the case stands submitted for determination." It was submitted with the evidence out of the record, and for consideration only on the assignment of •errors. On the part of appellee, the case is argued on the theory that the evidence is not in the record, and the additional abstract brings into the record no evidence whatever. Until the evidence was reinstated, appellee was under no obligation, if, even, it could properly be done, to argue tbe -case for submission as if the evidence was reinstated. Now, ■appellant, while ashing for the trial of the case with the «evidence reinstated, objects to further opportunity being •’given to appellee to argue the case, and says: “This court should dispose of the case finally and'fully on the record as it stands, and as it is now submitted.” , That we cannot do,' unless the disposition is based on the record as it was at the 'time of submission, which we think is the proper course to pursue. There could be no justification for our reinstating ‘the evidence and taking the case without argument by appellee, and we are not asked to take it in that manner. The 'motion to consider the cause on the evidence is overruled.

2 II. The Citizens’ Bank is plaintiff in two of the suits, ■and First National Bank of Tabor is plaintiff in the other suit, all consolidated for the purpose of trial in the district •court and in this court. One Frank C. Johnson is a judgment debtor of the plaintiff in each suit. The suits on which 'the judgments were obtained were aided by attachments, and levied on certain real estate in which appellant, Armstrong, -claims an interest. The present suits in equity were instituted later, in aid of the attachment proceedings, to subject "the real estate to the payment of the judgments. In each •of the suits now pending, the petition charges that the real -estate therein described was transferred to Armstrong in 'fraud of creditors, oh which property attachments had been levied in the prior suits. The district court made special findings in each of these cases, and found that the convey-' ■anee to Armstrong was fraudulent and void, and subjected the land, in each case, to the payment of the judgment. Each •case involved a question of fact as to the insolvency of Frank O. Johnson, 'and the court specifically found the fact of insolvency by saying, in its fourteenth finding, “that Johnson did not have sufficient property remaining to pay his debts.” It is .said that the finding does not ■sustain the decree, in this: that it does not appear but that lie bad sufficient property to pay plaintiff. How much property be bad, if any, does not appear. It does appear that be was insolvent, and so much so that tbe court adjudged tbe plaintiff entitled to tbe relief. We must assume tbe facts sucb as to support tbe decree, unless they appear otherwise. Tbe degree of insolvency does not appear, and so we must 'say that it was sucb as to sustain tbe decree, be tbe same more or less. We do not determine what that degree is, for it is unnecessary to do so. ' It is said tbe finding means “not sufficient property left to pay all bis debts.” Tbe finding does not say that; and it might, and might not, mean that. Tor instance, if tbe evidence showed that there was not enough to pay plaintiff’s debt, be would be insolvent, and there would be no need of inquiry into other debts, and the-finding, as stated, would be correct. In the absence of the evidence, we have no means of knowing, as we have said, tbe degree or extent of tbe insolvency. As tbe case is before-us on assignment of error, error must affirmatively appear to reverse tbe judgment. ■

3 III. Tbe land conveyed to Armstrong, as to which! the conveyance was adjudged fraudulent, is in range 41. In one of these suits, known as No. 7,850, there was an amendment to tbe petition setting out a copy of the judgment in the law action against Johnson, in which tbe attachment issued, and in tbe copy tbe range appears as No. 40. Tbe decree in the district court in No. 7,850 subjectstbe land to tbe judgment as being in range 41, and ■it is said that tbe judgment is contrary to tbe pleadings, and therefore erroneous. In all other places in the record tbe land is described as in -range 41, and such is tbe finding of tbe court. Tbe judgment or finding of the court does not refer to tbe copy, but to tbe judgment record in tbe law case, and in view of the court’s finding, and tbe record, as a whole, we are not authorized to say that tbe judgment is not correct. In tbe petition in case. 7,850. tbe land is described as in range 41, and tbe discrepancy in the copy would not so far control as to show error in tbe judgment.

4 IV. Joba O. Cowiu is also a judgment creditor of Johnson, and was made a defendant in suit No. 7,844, being tbe one above entitled, and be presented an answer and cross bill, in wbicb be asked to bave bis judgment made a prior' lien on tbe land in question. Tbe decree makes bis lien junior to tbe plaintiff’s, but be is given a lien to tbe extent of bis judgment. It is now said that it does not appear that be served on Armstrong notice of bis cross bill, and hence that tbe judgment in favor of Cowin is erroneous. Cowin is not represented in this court. It does appear from tbe amended abstract that a reply was filed to tbe cross petition, but it does not appear by whom it was filed. Tbe judgment indicates that it was filed by Armstrong; for there is a decree, based on tbe cross petition, against him. Tbe absence of tbe reply from tbe abstract makes it apparent that we bave not all tbe record, nor an abstract of all tbe record, pertaining to tbe question, and hence we cannot say that tbe issues did not warrant the decree entered. Tbe judgment will be affirmed.