Salinger v. Arts , 122 Iowa 8 ( 1903 )

SherwiN, J.

The jjlain tiffs filed amotion to strike the evidence presented by the appellant’s abstract because the same was not preserved by a proper bill of exceptions, the 1. practice: reporter’s notes. point being that the shorthand notes of the evidence were not duly certified and filed as required by statute in law cases. This motion was submitted with, the case, and we shall first determine it. The -case was finally submitted on the 4,th day of October, 1901, though judgment was not entered until some time thereafter. The. reporter’s notes were certified by the trial jtídge and by the reporter on the day of the submission, ■ as shown by the certificate. This certificate ,and the date thereof cannot be impeached by affidavit filed in this court. Barber v. Scott, 92 Iowa, 52. We must therefore find that the certificate was made on the 4th day of October, 1901, the day on which the case was finally submitted. The reporter’s notes, as they now appear, bear a filing mark of date June 20, 1902, but it is claimed by the appellants that they were in fact left; with the clerk for filing on the 5th day of October, 1901, and this claim they seek to establish by affidavits filed in this court. ■ The same rule- which applies to the date of the certificate is applicable to this point, and we cannot consider the affidavits as to the date of actual deposit with the clerk for filing.

But in their third amendment to the abstract the ap-pellees concede that the shorthand notes were filed at the close of the trial, but say that they were not then 2. practice: filing of reporter's note certifie already been said, they were certified on the 4th day of October, 1901, the day on which the trial was closed, and, it being conceded that they were immediately filed with the clerk, the evidence'was properly preserved, whether formerly marke l filed or not, and' the motion to strike the same is overruled. Foster et al. v. Hinsen et al, 75 Iowa, 291.

The motion to strike the appellants’ argument on the motion to strike the evidence because not filed in time was also submitted with the c'ase, and is overruled.

On the merits of the case no argument seems necessary to demonstrate that the judgment against the heirs is radically wrong. A mere statement of the issues tend-3. Estates: attorney's fees. ered. by the plaintiffs seems to settle this point.beyond all controversy. No facts are alleged which would make them liable. There is nowhere in the entire pleadings any thing more than amere prayer for judgment against them, and it is well settled that, a prayer for relief cannot take the place of a statement of facts. Casady v. Woodbury County, 13 Iowa, 113; Knows v. Mowery, 57 Iowa, 20; Hines v. Horner, 86 Iowa, 594; 16 Enc. Pldg. & Prac. 779, and cases cited. It is claimed, however, that the case was tried on the theory that a case against the heirs was in fact presented by the pleadings. The record, however, does not sustain this contention, for it clearly shows that the appellants by timely objections and by motions to strike testimony bearing upon this issue sought to, eliminate the question, and to confine the issue to the facts pleaded. • Furthermore, there is no warrant in the evidence for a personal judgment against the defendants. The appellees based their claim upon a written contract made with the executor, whereby he undertook to compensate them from the funds of the estate. This the court refused to enforce, and when it did so, and vacated its former order, it was an end of the case as it then stood, and the heirs were not personally liable.

Nor do we think the court sitting in probate had 'jurisdiction to try and determine the individual liability of the heirs. Such an action would be entirely foreign to any 4. probate jurisdiction. matter properly arising relative to the estate anc] the parties would be entitled to a trial to a jury, as in any other law action. See Prouty v. Matheson, 107 Iowa, 259, and cases therein cited. , This objection does not seem to have been urged below, however, and may be passed without further comment.

For the reasons pointed out, the judgment is reversed.