tice of appeal with return or acceptance of service thereon, and any other papers filed in the case, or any part thereof, may be transmitted to the Supreme Court in the original form or by a transcript of the same, excepting that the shorthand reporter's translation of his report shall be transmitted in its original form, but all entries of record must be certified by transcript. The clerk of the trial court shall verify his return, whether it be of the record or transcription thereof, by his certificate, under seal, distinguishing between originals and transcripts, and such certification so made shall constitute a part of the record in the Supreme Court. [Code, § 4123; Old Rules, § 33.] Sec. 32. The abstract so filed will be presumed to contain the record unless denied or corrected by a subsequent abstract. Every denial shall point out as specifically as the case will permit the defects alleged to exist in the abstract. A denial by appellee shall be taken as true unless the appellant sustains his abstract by a certification of the record. Should the appellee deem the appellant's abstract incorrect or unfair he may prepare such additional abstract as he shall deem necessary to a full understanding of the questions presented, to the court for decision. A denial by the appellant of such additional abstract, if not confessed, will be disregarded unless sustained by a certification of the record. The appellee shall serve one printed copy of his additional abstract or denial on each appellant or his attorney a correct decision of the appeal, the court and deliver twelve printed copies thereof to the clerk within fifteen days after receiving appellant's abstract, and a denial by the appellant shall be served on the appellee and twelve printed copies thereof delivered to the clerk within five days after service of the additional abstract. [Code, §§ 4118, 4120; Old Rules, § 31.] Sec. 33. All objections to the jurisdiction of the court to entertain an appeal must be made in printed form stating specifically the ground thereof and served upon the appellant or his attorney of record not less than ten days before the date assigned for the submission of the cause. [33d Gen. Assem. c. 206.] Sec. 34. No certification of the record shall be required unless ordered by, the Supreme Court, or a judge thereof, which order must be made upon an application in writing or by motion, designating the matters and things of record desired to be included therein, and showing the necessity therefor. The order, if granted, shall contain similar designations and show the parts to be given by an abstract of the original record and the portions to be by transcript, and may require any or all the matters to be presented by an amended abstract. The application and the order made shall be filed in the office of the clerk of the Supreme Court, who shall transmit the order to the clerk of the lower court, and send a notice or copy thereof to the appellant, or his attorney. The order shall be attached to and returned with the record certified, and be submitted with the papers in the case. The appellant, upon notice or copy of the order being received by him or his attorney, shall, within five days, unless otherwise ordered, pay or secure to the satisfaction of the clerk of the lower court his fees and expenses for preparing and forwarding the record ordered. [Code, § 4122; Old Rules, § 32.] Sec. 36. Where a view of an original paper or exhibit in the action may be important to may order the clerk of the court below to transmit the same, which he shall do in the manner provided for the transmission of certifications of the record. [Code, § 4124; Old Rules, § 34.] Sec. 37. A transcript may be denied; and when such denial is made it shall be as specific as the case will permit. The trial court, the Supreme Court, or judge of either court may make any orders necessary to secure a perfect record or transcript thereof, upon a showing by affidavit or otherwise, and upon such notice as the court or judge may prescribe. [Code, §§ 4120, 4127; Old Rules, § 35.] Sec. 38. The transcript of any paper or exhibit required for use in the Supreme Court may be transmitted thereto by the clerk of the trial court, by express or other safe and speedy method, but not by a party or any attorney of a party. [Code, § 4125; Old Rules, § 36.] Sec. 39. If an abstract of the record is not filed by appellant thirty days before the second term after the appeal was taken, unless further time is given by the court, or a judge thereof, for cause shown, the appellee may file an abstract of such matters of record as are necessary, or may file a copy of the final judgment or order appealed from, notice of appeal and return of service thereof certified by the clerk of the trial court; and cause the case to be docketed, and the appeal upon motion shall be dismissed, or the judgment or order affirmed. [Code, § 4120; Old Rules, § 37.] Sec. 40. If the appellant fails to promptly pay or secure to the satisfaction of the clerk of the trial court, his fees and expenses for preparing and forwarding to the clerk of the Supreme Court any record ordered to be certified by the Supreme Court, or a judge thereof, upon receiving notice thereof, or Sec. 35. When certification of the record is copy of the order therefor, the appeal upon required the designated papers, notices, dep-motion supported by proofs of the facts, may (186 N.W.) appellee may elect. [Code, 4122; Old Rules, 38.] Sec. 41. Where appellant has no right, or no further right, to prosecute the appeal, the appellee may move to dismiss it, and if the grounds of the motion do not appear in the record, or by a writing purporting to have been signed by the appellant and filed, they must be verified by affidavit. [Code, § 4151; Old Rules, § 39.] Sec. 42. The appellee may, by answer or abstract filed and verified by himself, agent or attorney, plead any facts which render the taking of the appeal improper, or destroy the appellant's right of further prosecuting the same, to which the appellant may file a reply or abstract likewise verified by himself, his agent or attorney, and the questions of law or fact therein shall be determined by the court, upon evidence in the form of affidavits unless otherwise ordered. [Code, 4152; Old Rules, § 40.] IX. MOTIONS. Sec. 43. (1.) All motions must be in writing, filed with the clerk and entered upon the motion book. No motion shall be submitted without being publicly called by the court, unless the parties otherwise agree. X. BRIEFS AND ARGUMENTS. Sec. 44. When the appeal presents only questions of law upon rulings of the court below, appellant shall open and close the argument, and must, at least forty days before the day assigned for the hearing of the case, serve upon an attorney for each appellee copies of his brief of points, authorities and argument. If appellee desires to be heard, he shall, at least fifteen days prior to the time set for hearing, serve upon an attorney for each appellant copies of his brief or argument; and the printed reply, if any, shall be served at least three days before the case is to be finally submitted. If the trial in the Supreme Court is de novo, and appellant has the burden, he shall observe the foregoing rules. If appellee has the burden, he may waive his right to open the argument; and if he fails to serve and file his brief within the time hereinbefore provided, he shall be held to have waived the right. Appellant will then be entitled to open the argument, and must serve copies of his brief upon an attorney for each appellee fifteen days before the hearing. Appellee may then, and at least three days before the submission, serve upon an attorney for each appellant copies of his argument, which must be strictly confined to matters to comply with the above requirements will entitle the party not in default, unless the court shall, for sufficient cause, otherwise order, to a continuance or to have the case submitted at his option upon the briefs and arguments on file when the default occurred. [Code, § 4139; Old Rules, § 44.] (2.) Motions must be served by copy of the same and of all affidavits or documents | in reply to appellant's argument. A failure upon which they are based, upon the opposite party or attorney, ten days before the morning on which the causes for the district are set for hearing. Such opposite party shall then have five days to file papers in resistance to the same, copies of which must be served upon the other party or attorney, and no papers will be regarded which do not ap- Sec. 45. All printed briefs and arguments, pear to have been so served. This rule shall except upon motions shall be prepared as not apply to motions the causes whereof required by sections 53, 54 and 55 hereof, arise after the filing of the abstract, but in and each party shall file with the clerk such cases timely notice of such motions twelve printed copies of each brief or argushall be given to the opposite attorneys. ment, together with proper evidence of servNor shall this rule apply, as to time of service of the same upon opposing attorneys. ice, to motions for continuance, or to ad- The clerk shall note upon his docket the date vance. (3.) Motions made in a cause after judgment rendered by the Supreme Court, or after the time assigned for the hearing of causes from the district from which it was appealed, will be heard only upon proof of service of reasonable notice of such motion upon the adverse party or his attorney. (4.) Arguments in support of motions, if any, must be in writing or print, and shall be filed before the morning of the day set for the hearing of the cause, and served by copy upon the opposite party or attorney when the motion is served; and arguments in resistance, if any, must be in writing or print and filed before the morning of the day set for the hearing of the cause, and served by copy on the opposite party or attorney when the papers in resistance are served. [Code, § 4138; Old Rules, § 43.] of the service and filing of all abstracts and arguments, and no brief or argument not served or filed within the time prescribed by these rules will be transmitted to the judges or considered by them in disposing of the case. No cause will be entered as submitted until the arguments are finally and actually concluded. [Old Rules, § 45.] Sec. 46. Notice in writing, or in print, of intention to argue a case orally, shall be served upon an attorney for the adverse party and filed with the clerk of this court twenty days before the first day of the term, and the party who fails to serve and file such notice shall not be entitled to argue orally, except in reply to an oral argument for the adverse party. [Old Rules, § 46.] Sec. 47. If the case is triable upon errors assigned and not de novo and appellant has given notice of oral argument, he will be at the trial, and the names and addresses of the attorneys for both appellant and appellee; also the name of the paper filed, the party by whom filed and one copy shall show the time and manner of service. [Old Rules, § 51.] Sec. 51. Abstracts and all amendments thereto must be accompanied by a complete index of their contents. [Old Rules, § 52.] Sec. 52. Abstracts of record shall be made in substantially the following form: entitled to open and close. If appellee alone | brought, the court from which the appeal is gave the notice he will be entitled to open taken, the name of the judge who presided the argument and appellant must confine his remarks strictly to a reply. If the cause is triable de novo the party upon whom rests the burden of the proof may, if he has given the requisite notice, open and close the argument. If he has not given notice he will be confined strictly to an answer to the argument for the other side. No oral argument shall exceed one-half hour in length, unless an extension of time be granted before the argument is commenced or it becomes apparent during the course of the argument that more time is necessary, whereupon the court may grant additional time. On original submission two attorneys may be heard on each side; but in the event counsel opening the argument is not entitled to reply, but one attorney shall be heard for either party. Reply arguments shall be limited to fifteen minutes. On petitions for rehearing only one attorney shall be heard for either party; the petitioner to have not exceeding twenty and the respondent not more than fifteen minutes; unless extensions be granted by the court. [Old Rules, §§ 47, 48.] Sec. 48. Oral argument shall be confined to a discussion of the proposition and authorities contained in the briefs. Failure to IN THE SUPREME COURT OF 1OWA. John Doe, VS. Appellant, Richard Roe, of Appellee.. "In Equity" or "At Law." Appeal from Van Buren District Court. J. C. K., for the Appellant. APPELLANT'S ABSTRACT OF RECORD. ..... On the ..... Attorneys for day of 19...., the discuss in oral argument points properly plaintiff filed in the Van Buren district court a made in the briefs shall not be deemed a waiver of such points, but they will be fully considered in determining the cause. [Old Rules, § 49.] Sec. 49. Before taking up the assignment for the several periods a preliminary call of all causes included in that assignment will be made; but the submission of a cause shall not be taken on this call if any party thereto objects. The court will hear all causes included in the assignment and take the submission thereof in the order in which they are assigned, excepting those which have been continued or otherwise disposed of. [Code, § 4139; Old Rules, § 50.] XI. PREPARING AND PRINTING ABSTRACTS, TRANSCRIPTS, BRIEFS, ARGUMENTS, AND PETITIONS FOR REHEARING. Sec. 50. All abstracts, denials of abstracts, briefs, arguments and petitions for rehearing shall be printed upon unruled, unglazed writing paper, with type commonly known as small pica, leaded lines, the printed page to be four inches wide by seven inches long, with a margin of two inches; but the type in which extracts are printed may be small pica solid or brevier with leaded lines. The lines of abstracts must be numbered consecutively on each page. The first page of the abstract, denial brief or argument, shall show the title of the cause, designating the appellant and the appellee, the term of the PETITION stating his cause of action as follows: [Set out all of petition necessary to an understanding of the questions to be presented to its, omit all merely formal irrelevant parts, as, this court, and no more. In setting out exhibfor example, if the exhibit be a deed of mortgage and no question is raised as to the acknowledgment, omit the acknowledgment. When cumber the record with the original notice, or the defendant has appeared it is useless to enthe return of the officer.] On the ..... day of the defendant filed a ...... DEMURRER A. D. 19...., (186 N.W.) After the evidence and the arguments of counsel were concluded the plaintiff (or defendant, as the case may be) asked the court to give each of the following instructions to the jury: [Set out instructions referred to, and continue.] Which the court refused as to each instruction, to which several rulings the plaintiff (or defendant) excepted at the time. And thereupon the court gave the following instructions to the jury: [Set out the instructions.] To the giving of those numbered (give the numbers) and to the giving of each thereof the plaintiff (or defendant) at the time excepted. [Set out the record of the ruling.] Third. How the issues were decided, and what the judgment or decree was. Fourth. A brief and concise statement of so much of the facts as fully presents the errors and exceptions relied upon, referring to the pages and lines of the abstract. Fifth. The errors relied upon for a reversal. Following this the brief shall contain, under a separate heading of each error relied on, separately numbered propositions or points, stated concisely, and without argument or elaboration, together with the authorities relied on in support of them; and in citing cases, the names of parties must be given, with the book and page where reported. When text books are cited the number or date of the edition must be stated, with the number of the volume and the page or sec tion. No alleged error or point, not contained in this statement of points, shall be raised afterwards, either by reply brief, or in oral or printed argument, or on petition for rehearing. [Old Rules, § 54.] Sec. 54. The brief of appellee shall point out any omissions or inaccuracies in appellant's statement of the record, and shall contain a short and clear statement of the propositions by which counsel seek to meet the alleged errors and sustain the judgment or decree, or by which such errors are obviated. Following this statement, the brief shall contain the points and authorities relied on in like manner as required in appellant's brief. The brief of appellee on cross-errors shall be prepared in the manner required of an appellant's brief. The brief of appellant, in answer to the cross-assignment of errors, To which the plaintiff (or defendant) at the shall be prepared in the manner required of time excepted. JUDGMENT. On the ...... day of 19...., the following judgment was rendered and entered of record: [Set out the judgment entry appealed from. On the day of.... 19. ..., the plaintiff perfected an appeal to the Supreme Court of the state of Iowa, by serving upon the defendant and the clerk of the district court of Van Buren county a notice of appeal. [If supersedeas bond was filed, state the fact.] INDEX. This outline is presented for the purpose of indicating the character of the abstract contemplated by the rule, which like all the rules, is to be substantially complied with. Of course, no formula can be laid down applicable to all cases. The rule to be observed in abstracting a case is: Preserve everything material to the questions to be decided and omit everything else. [Code, §§ 3675, 3749; Old Rules, § 53.] Sec. 53. The brief of appellant shall contain a short and clear statement disclosing: First. The nature of the action. Second. What the issues were. appellee's answer to appellant's assignments of error. Reply briefs shall be prepared in manner like to answer briefs. [Old Rules, § 55.] followed by an argument in support of such Sec. 55. The brief of any party may be brief, which shall be distinct therefrom, but shall be bound with the same. The argument shall be confined to a discussion and elaboration of the points contained in the briefs in the order stated. The names and addresses of counsel shall be affixed to all briefs filed by them. [Old Rules, § 56.] Sec. 56. Transcripts of the record, when required by the Supreme Court, or a judge thereof, may be made substantially in the manner following, viz: day of said term, this cause coming on for trial, came to a jury, to-wit the...... day of [Here insert the petition in full.] [Here insert the notice in full.] [Copy all indorsements on the face of the transcript, or copy of record, and not upon the back of the leaf.] Upon which (or attached to which) was a return as follows: [Copy the officer's return, with all indorsements in full; if the suit be by attachment, copy the petition, or affidavit, writ or attachment, bond, notice, return, etc.] And afterwards, to-wit: on the day of .., A. D. 19...., there was filed in the office of the said clerk, an answer in words and figures following, to-wit: [Here insert answer in full.] [Should the clerk doubt what the paper is, let him call it a "paper in the words and figures following," etc. Where a paper is filed in term time, add the day of the term to the day of the month, as in the next form.] A. B. V. C. D. And afterward, to-wit: on the day of A. D. 19... it being the day of the term of said court, the said A. B. (or plaintiff) filed the following demurrer to the answer of the said C. D. (or the said defendant), to-wit: [Here insert demurrer in full.] [If a party files more than one pleading at the same time, they should be numbered in their regular order, as for instance a demurrer and answer, and the transcript may say (stating the date) the said C. D. (or defendant) filed his demurrer and answer, which are filed subject to the rule.] A. B. V. C. D. day of A. And now, on this D. 19...., it being the day of the said term thereof, this cause coming on for hearing on the plaintiff's demurrer to the defendant's answer (copy the entry of the proceedings of the court, sustaining or overruling the demurrer.) And afterward, on the day of the said it being the day of the said term, the said plaintiff filed his reply in the words and figures following, to-wit: [Here set out reply in full.] And afterward on the A. D. 19...., the said defendant filed motion and affidavit for a continuance, as follows, towit: ...... day of [Here set out copy of motion and affidavit.] And the same being now heard and considered by the court, the said motion is sustained, and it is ordered that this cause be continued until the next term of the court (at the cost of the defendant.) In the district (municipal or superior) court, county (or ...... city.) A. B. C.D.J term, A. D. 19.... ...... twelve good and lawful men, who were sworn well and truly to try the issues between the said parties, and a true verdict render, according to the law and evidence given them in court. The jury retired to consider on their verdict, and afterward, on the same day, the jury returned into court and rendered its verdict, as follows: [Here insert in full the verdict as rendered.] [Or if the jury does not return until the next day, let the record recite the fact.] A. B. And now, on this ...... day of A. D. 19...., this cause coming up for a hearing on the motion of the plaintiff for a new trial, it is considered by the court, that the same be overruled (or, as the case may be.) [Then add the final entries of record, comprising final judgment, etc., and certificate of clerk.] The foregoing form is an example only, and is to be varied according to the circumstances. The actual facts of the case will dictate what is to be done, but in all cases it is to be done substantially in like manner Iwith the above, giving the proper order and date of the filing of papers and incorporating them at the proper date into proceedings of the court. When the order made by this court or a judge thereof, pursuant to rules 32, 34, 35 and 36, requires but a part of the record be transcribed, the foregoing form should be so modified as that it will include only those matters directed to be certified. All other, except the mere formal parts. must be omitted. [Code, §§ 3675, 3749, 4122, 4123; Old Rules, 57.] XII. DECISIONS AND OPINIONS. Sec. 57. The court may reverse, modify or affirm the judgment, decree or order appealed from, or render such as the inferior court should have done. [Code, § 4139; Old Rules, $ 58.] Sec. 58. No cause will be considered as decided until a written decision is filed with the clerk. The decision of the court on all questions passed upon by it, including motions and points of practice, shall be specific |