v.
John Martin
Let us again turn to the abstract and notice the recitations therein. It is stated that, the court made and filed the following judgment and decree, and this is signed by Z. A. Church, judge. There is no statement that this judgment [*75] or decree was ever entered of record. Indeed, that thought is distinctly negatived. This so-called judgment and decree signed by the judge was “ made and filed by the court.” If filed, it could not, of course, be a decree entered upon the records, for it would be quite impossible to file such a decree. Hence the judgment form, signed by the judge must have been the one which was filed. The one made by the court was the one which was filed, for the record is that the judgment and decree was the one made and filed, and not some other, which may have been properly entered of record. Ordinarily, we will presume, in the absence of a showing to the contrary, that when the abstract,recites the rendition of a judgment or decree it was such an one as is.appealable; for there is a broad presumption that the abstract contains the record as it exists in the lower court. But where, as here, the abstract recites just what was done, there is ho room for presumption. This abstract affirmatively shows that there was no appealable decree, and in the face of such a showing we cannot presume that it was properly entered of record. The .only other reference to a decree is that the transcript was filed within six months of the rendition of said decree. Manifestly, the decree therein referred to is the one previously mentioned; and that, as we have’seen, was no decree.
Appellants say in their motion for leave-to file that, if the statement in the original abstract be held insufficient, the [*76] defect was due to a mere oversight on the part- of the attorneys who prepared the abstract. This is rather an ingenious claim of oversight. In other words, unless held insufficient b-y this court, there was no oversight. That a new record cannot be made for this court after a petition for a rehearing has been granted, see the following among other cases: Iowa City v. Johnson County, 99 Iowa, 514; McDermott v. R. Co., 85 Iowa, 180; Johnson v. Weaver, 87 Iowa, 75. And that the showing made in excuse for failure to file a proper abstract is insufficient see Hintrager v. Hennessy, 46 Iowa, 604; Nixon v. Downey, 49 Iowa, 171. The matter to which we have referred is jurisdictional, and there was no necessity for counsel’s calling our attention to the matter on the original submission. However, when the case was originally presented, appellee’s counsel called our attention to the fact that we were without jurisdiction, but did not specifically point out the alleged defect. This he was not compelled to do.
Finding, as we do, that we have no jurisdiction of the case, the appeal must be and it is dismissed.