Anderson v. Easton & Son. dence, which is not before us, justified the conclusion and action of the District Court. This III. It is next claimed by the appellant, as he was "regularly subpenaed" before the justice, and also before the District Court as a witness, that he was not within the meaning of the statute "the prosecuting witness." He instituted the proceedings. He caused the complaint to be made, swore to and filed the same. He set the machinery of the law in motion out of which the costs arose. alone would justify the Court in treating him as the prosecuting witness. All of the presumptions are in favor of the regularity and correctness of the action of the Court below; and the appellant has brought to this Court no testimony showing or tending to show that the Court erred in treating him as the prosecuting witness. The mere fact that the officer for the State caused the appellant to be subpenaed does not rebut the presumption arising from the filing and subscribing of the information, and from the finding of the District Court, that the appellant was the prosecuting witness. Judgment affirmed. ANDERSON v. EASTON & SON. 1. EVIDENCE: DEPOSITIONS. Depositions taken out of the State must be taken on commission, and not on notice. But when the deposition can be taken in the county of the trial, no commissioner is necessary, notwithstanding the witness is a resident of another state. 2. RECORD: CHANCERY. The record in a chancery cause, tried by the first method for the trial of equitable actions, should show, either by record entry, or the certificate of the judge or clerk, that it contains all the evidence, in order to enable an appellant to have a trial de novo in this Court. Anderson v. Easton & Son. Appeal from Winnesheik District Court. FRIDAY, APRIL 15. PETITION by plaintiff, as the vendee of certain real estate, to set aside the title bond, received from the defendants, on the ground of mistake. The cause was tried, according to the first method, for the trial of equitable issues (Rev., § 2999), and a decree rendered for the plaintiff. Defendants appeal. E. E. Cooley for appellants. L. Bullis for appellee. DILLON, J.-I. In the District Court the defendants moved to suppress the deposition of the plaintiff, "Peter Anderson, and of Ole Gildbrandson, on file in this cause, on the ground that they were, at the time of the taking of their said depositions, non-residents of this State, and residents of the State of Minnesota; and that, therefore, their depositions should be taken under and by virtue of a commission, to be issued out of this Court." The fact of the non-residence of the said witnesses was duly shown by an affidavit, filed in support of the motion. This action was pending in the county of Winnesheik. The deposition of Ole Gildbrandson is not contained in the record before us; nor does any part of the record disclose what became of the deposition. But the deposition of Peter Anderson is contained in the record, which shows that it was duly taken by and before the Clerk of the District Court of Winnesheik county, on notice. The ground of appellant's motion is, that the Court should have suppressed the deposition, because it was not taken on commission, inasmuch as the witness resided in another State; and we are referred to section 4065 of the Revision, and to Fabian v. Davis, 5 Iowa, 457. VOL. XVI.-8 Anderson v. Easton & Son. Neither the statute or the case cited supports the appellant's view. If the deposition had been taken out of the State, it must have been done by commission, and not on notice. But when the deposition is taken in the county of the trial, as in this instance, no commission is necessary. Depositions taken on notice, when both parties can be present, or be represented by their attorneys, are much more satisfactory than when taken in their absence by a commissioner or officer on written interrogatories; and as we can see no reason for giving the statute the construction contended for by the appellant, the ruling of the District Court on this point is affirmed. II. The appellant next maintains, that the decree was erroneous upon the merits of the cause. The state of the record does not permit us to make this inquiry, inasmuch as it not only does not appear, in any manner, that we have all the testimony before us, but it affirmatively appears, that a portion of the testimony, viz.: the deposition of Ole Gildbrandson, which the Court refused to suppress, is not certified to this Court. Either the record entry, or a certificate of the judge, should specify on what testimony the cause was heard; or the certificate of the clerk should, in substance, state that the transcript contains all of the evidence, in order to enable an appellant in a chancery cause to have, in this Court, a trial de novo, on the law and facts. When, as in this case, it does not appear that we have before us all the evidence, the presumption is, that the decree below was warranted by the testimony. Ticonic Bank v. Harvey et al., infra; Garner v. Pomeroy, 11 Iowa, 149; Cook v. Woodbury County, 13 Id., 21. Decree affirmed. Mather v. Butler County. MATHER V. BUTLER COUNTY. 1. COUNTY: ACTION AGAINST. Chapter 93, Laws of 1862, is limited in its application to actions commenced after the taking effect thereof. 2. AMENDMENT: ADDITIONAL COUNT. An amendment to a petition by the addition of another count will not be regarded as the commencement of a new action, where it appears on the face of the petition as amended, that the cause of action stated in the new count is upon the same state of facts on which the cause of action stated in the original petition is based. Appeal from Blackhawk District Court. FRIDAY, APRIL 15. THIS suit was originally brought in the county of Butler, and was afterwards taken by change of venue to the county of Blackhawk. The Court sustained a demurrer by defendant to the the plaintiff's amended petition, and rendered judgment against the plaintiff for costs, from which he appeals. The facts are sufficiently stated in the opinion. C. H. Conklin and I. M. Preston & Son for the appellant, cited 1 Van Sant. Pl. (2d ed.), pp. 798-803; Rev., 1860, §§ 2972-2977; 1 Barb. Ch Pr., 120; 1 Whitt. N. Y. Pr., 348; 1 Chitt. Pl., 264. B. W. Poor for the appellee. COLE, J.-The original petition in this case was filed July 3, 1861, claiming one thousand dollars, balance due on a written contract, for the furnishing materials and doing the carpenter and joiner work in and about the erection of a court house for the defendant. The notice was served on the same day. To this petition there was a general denial by defendant. On the 15th day of July, 1862, the plaintiff filed an amended petition, claiming the same amount as in his original petition, and alleging that there was a second contract for other work on the court house, 16 59 120 565 Mather v. Butler County. which had been performed and paid for, and the amount claimed was due on the first contract. The defendant's answer was filed the same day, denying indebtedness on the first contract, and alleging that the second was a substitute for the first, and that plaintiff had been fully paid for his work. The plaintiff obtained leave of Court on the 28th day of October, 1863 (which was granted on payment of all costs after the commencement and filing fees), to file a second amended petition, and filed the same on that day, in which he claimed "twenty-five hundred dollars in addition to the amount claimed in said. first amended petition." This amended petition was for work and labor done, materials, lumber, nails, paint, &c., furnished for the defendant, a copy of the account for which, was referred to, and annexed to said petition. The account annexed begins as follows, viz.: "To work and materials furnished and rendered in and about the erecting of a court house for defendant," &c. To this second amended petition, the defendant demurred, because it was upon an unliquidated claim against the County of Butler, and there was no averment that the same had been presented to the Board of Supervisors and payment de manded. This demurrer was sustained by the Court, whereupon the plaintiff withdrew his cause of action, as set up in his first amended petition, and declined to plead over, and judgment was thereupon rendered for defendant, for costs. By an act approved April 2, 1862 (see chap. 93 of the Laws of 1862), it is provided "that no action shall be hereafter brought in any of the Courts of this State, against any county therein, on any unliquidated claim against such county, until the same shall have been first presented to the Board of Supervisors, and payment thereof demanded, anything in the law now in force to the contrary notwithstanding." |