
    James Teague, Appellant, v. John Fortsch, et al.
    
    1 2 Appeal: certification of record. Under Code, section 2742, requiring all evidence on appeals in equitable actions, to b© certilled by tlie judge, a certificate made by the judge after lie has retired from office is insufficient.
    3 Same. Under Code, section 2742, the certificate must be made by the judge who tried the case, and one made by his successor in office is insufficient.
    4 Judge and cleric. Code, section 2742, requires all evidence on appeals in equitable actions, to be certified by .the judge. Section 3184, provides that, in equitable actions tried upon written testimony, all depositions and papers which were used as evidence, are to be certified, not by transcript, but in the original form. Held, that the certificate must be by the judge, notwithstanding filie case was tried on written testimony alone; the office of the clerk’s certificate, under section 3184, being merely to identify and authenticate the record. Cross v. Railway Company, 58 Iowa, 65 (12 U. W. Rep. 71), overruled. Ruge v. Hahn, 75 Iowa, 734 (38 1ST. W. Rep. 389), followed.
    
    
      Appeal from Fayelte District Court. — Hon. W. A. Hoyt, Judge.
    Monday, April 13, 1896.
    Appellees, Mary H. Teague and Lewis Mohlis, are the administratrix and administrator of the estate of Thomas Teague, deceased, and appellee Fortsch, is the purchaser of the real estate sold by them, as hereinafter stated. Appellant, on September 29,1891, filed a claim against said estate, which was allowed, on April 7, 1893, in the sum of two thousand, one hundred and seventy-three dollars and fifty-six cents. He also held a claim against said estate, by assignment, in favor of Fred Teague, for one thousand two hundred and forty-five dollars. The deceased, Thomas Teague, left surviving him, his widow, Mary H. Teague, the administratrix aforesaid, and Ms daugMer, Elizabeth H. Teague, as his only heirs at law. In September, 1892, an order was entered by the distribt court of Fayette county, Iowa, authorizing said administrator and administratrix to sell all of the real estate left by decedent, except s.uch as had been set off to the widow, for the payment of debts, including those held by plaintiff. Under the order, the real estate might be sold at either public or private sale. Notice of the application for an order for the sale was served only on said widow and daughter of the deceased. The land was duly appraised at three thousand seven hundred and fifteen dollars, and sold to the defendant Fortsch, at private sale, for three thousand seven hundred and twenty-five dollars, and an administrator’s deed, in the usual form, executed to him. A report of this sale was made to the court, and the sale and deed duly approved. The proceeds arising from the sale will not pay over sixty per cent, of the amount of the claims filed against the estate. May 11, 1893, plaintiff filed his petition to set aside said sale and deed, as being fraudulent and void, as against the creditors of said estate, and because the consideration was grossly inadequate. The defendants answered, denying all allegations of fraud and allegations that the value of the land was greater than the amount they had sold it for. At the conclusion of the trial, the court dismissed plaintiff’s petition, and entered a decree against him for costs.
    
    Affirmed.
    
      J. E. Cook for appellant.
    
      Ainsioorkh, Hobson & Ainsioorth for appellees.
   Kinne, J.

II. It is urged that, as this cause was, by consent of parties, tried upon written evidence, there was no necessity for a certificate of the judge; that, when the depositions were filed in the clerk’s office, they became a part of the record in the case, just as much so as the pleadings; and that in such a case all the evidence may be certified by either the clerk or judge. It may be conceded that the certificate of the clerk in this case is in form and substance sufficient, if any certificate by the clerk can be said to be a compliance with the provisions of the statute. In view of some of the decisions of this court, this question is not free from difficulty. In March, 1878, section 2742 of the Code was repealed, and the following, enacted in lieu thereof, took effect:, “But in equitable actions, wherein issue of fact is joined, all the evidence offered in the trial shall be taken down in writing, or the court may order the evidence, or any part thereof, to be taken in the form of depositions, or either party, at pleasure, may take his testimony, or any part thereof, by deposition. . All the evidence so taken shall be certified by the judge in term or vacation, be made a part of the record and go on appeal to the supreme court, which shall try the case anew.” Acts Seventeenth General Assembly, chapter 145. The Nineteenth General Assembly repealed the above provision, and enacted in lieu thereof, a provision of the same tenor, and, except in one or two immaterial respects, in the same language, except that the italicized words were left out, and in lieu thereof the following appears: “At any time within the time allowed for the appeal of said cause, and.” This act went into effect by publication in March, 1882, and has not since been changed. McClain’s Code, section 4414 (section 8184 of the Code), reads: “In an action by ordinary proceedings, and in an action by equitable proceedings, tried in whole, or in part, on oral testimony, all: proper entries made by the clerk, and all papers pertaining to the cause and filed therein, except subpoenas, depositions, and other papers which are used as mere evidence, are to be deemed part of the record. But in an action by equitable proceedings, tried upon written testimony, the depositions and all papers which were used as evidence, are to be certified up to the supreme court, and shall be so certified, not by transcript, but in the original form. * * *” This section is the same, in substance, as section 8512 of the revision of 1860. Under section 3512 of the revision, it seems to have been considered that when a case had been tried upon written evidence and depositions, and all papers used in evidence properly certified by the clerk, no certificate by the judge was necessary. Baldwin v. Tuttle, 23 Iowa, 71. In Cross v. Railroad Co., 58 Iowa, 65 (12 N.W. Rep. 71), it appeared that there was no certificate of the judge, but the cause had been tried upon written evidence. It was held that the certificate of the clerk was all that was 'necessary to entitle the parties to a trial de novo in this court. It was held that the Act of the Seventeenth General Assembly, then in force, did not operate to repeal section 3184 of the Code, and that, when oral evidence was introduced at the trial, it must be certified by the judge, but when the evidence consisted of depositions, or other papers, on file, either the judge or clerk might certify the same to this court; thereby both sections of the statute were given effect. In Runge v. Hahn, 75 Iowa, 734 (38 N. W. Rep. 389), — an equitable action, — it was held that section 2742 of the Code, as amended by chapter 35, Acts Nineteenth General Assembly, required the trial judge to certify all the evidence offered and introduced upon the trial. It was also said that the object of that provision was to identify the evidence offered or introduced upon the trial, and that the certificate of the judge “cannot, in the matter of identification, be supplemented by the certificate of the clerk. The office of the certificate of the clerk required by section 3184, since the enactment of chapter 35, Acts Nineteenth General Assembly, is to identify and authenticate the record. Before that enactment, depositions and other papers used merely as evidence were not deemed part of the record, and could be identified by the clerk’s certificate, but its effect clearly is to change that rule. Cross v. Railroad Co., 58 Iowa, 63 (12 N. W. Rep. 71), arose before its enactment, and it is not now an authority on the question.” We are unable to see why the Gross Case was not as good authority under the act of the Nineteenth General Assembly, as prior thereto. It would seem that the writer of the opinion in Runge’s Case, must have overlooked the fact that the only effect of the act of the Nineteenth General Assembly was to fix a definite time within which the judge must certify the evidence. If the rule was changed as is held in Runge’s Case, it was done as early as the Act of the Seventeenth General Assembly took effect, and it was in force when the Gross Case was decided. It seems to us that it is not possible to reconcile the holdings in these two cases. We incline, however,' to the opinion that the rule adopted in Runge’s Case is the better one, and that the two sections may both stand, — section 2742, as amended, requiring that in all equity causes triable de novo in this court, the judge shall certify the evidence, whether it be taken orally, or in the form of depositions, or other written evidence, and that the office of the certificate of the clerk, under section 3184, is to identify and authenticate the record. It must be apparent that no one, save the judge trying the case, can always know just what writings, or depositions, were offered, or received, as evidence in the case. We conclude, therefore, that the two sections of the statute under consideration are properly construed in Runge’s Case; and, in so far as the Gross Case is in conflict with the views herein expressed, it is overruled.

As the evidence has not been properly certified, we cannot consider the case on its merits. The motion to strike the evidence is sustained, and the judgment below is affirmed.  