Smith v. Brown , 123 Iowa 114 ( 1904 )

Deemer, C. J.

The case is in equity, and is triable here de novo. In order that there may be such a trial, the evidence in the lower court must have been preserved, properly certified, and filed within six months of the rendition of the decree. Attached to some shorthand notes we find a certificate of the trial judge that they are the shorthand notes of all the evidence in the trial of the cause wherein D. M. Smith was plaintiff and W. T. Brown and Nellie C. Sprague et al. were defendants. The shorthand reporter who took them retired from office, and thereafter he made a translation thereof, and under oath stated that it was a full and complete transcript of the shorthand notes taken in the case of D. M. Smith v. W. T. Brown and Nellie O. Sprague et al. This translation was headed as in the “District Court of Louisa County. D. M. Smith v. W. T. Brown, Nellie C. Sprague et al/J Counsel -say in their abstract that the word “Sprague” is a clerical mistake in the transcript, that It should be “Springer,” and that the translation was filed in the case now before us, and is a transcript of the evidence in that case; that there never was a case of D. M. Smith v. W. T. Brown and Nellie C. Sprague in the district court.

These statements cannot, of course, be considered. The certificate, affidavit, and title to the transcript are the only matters which we may consider in determining whether or not we have the record of the case properly before us. Neither affidavits nor statements of counsel can be considered upon that question. If there was a mistake it should have been corrected in the district court. We must take the record as it is. Aside from this, there is no statement from counsel, or any other showing, that there is any mistake m the certificate of the trial judge. The whole question then is: Is a case entitled “D. M. Smith v. W. T. Brown and Mrs. Nellie C. Springer the building and the premises described as follows: Lot 44, original town of Columbus Junction, Iowa,” the same as one entitled “D. M. Smith v. W. T. Brown and Nellie C. Sprague et aX.” ? Manifestly not. Nellie C. Sprague is not Mrs. Nellie O. Springer. Neither is the building and premises described as “Lot 44,” etc., the same as “et alT Unless they are the same, or so nearly the same as that we may apply the rule of idem sonans, it is manifest that neither the shorthand notes nor the transcript in the case is properly identified. Without this identification, we cannot consider the case de novo. The following cases tend to support our conclusions: Bauernfiend v. Jonas, 104 Iowa, 57; Teague v. Fortsch, 98 Iowa, 92; Joy v. Bitzer, 77 Iowa, 73; Blanchard v. Devoe, 80 Iowa, 521; Lewis v. Minthon, 73 Iowa, 80; Gardner v. R. R., 68 Iowa, 588.

Having nothing before us but the pleadings' and the decree, we cannot say that the court was in error in dismissing the proceedings. The decree is therefore akbtrmed.