Ames Evening Times v. Ames Weekly Tribune

183 Iowa 1188 | Iowa | 1918

Per Curiam.

The errors assigned and relied upon by appellant are as follows: (1) The judgment of the trial court is against the weight and preponderance of the evidence; (2) the court should have found the appellant entitled to the appointment; (3) the court erred in not finding the appellee’s list of subscribers to be fraudulent, and in not finding that said list had been padded or enlarged by placing thereon names of others than bona-fide subscribers; and (4) the court erred in allowing the appellee to amend its affidavit to its list by supplying the seal of the clerk to the verification of said list: and to these propositions we confine our attention.

I. It will be observed that the first, second, and third assignments all relate to the sufficiency of the evidence to sustain the judgment of the district court, and we therefore consider them as one.

' error?' contest in re official county newspaper. The argument for appellant seems to assume that this proceeding is of an equitable nature, and that fact questions in issue are triable in this court de novo. Appeals from the judgments and orders of boards and other inferior tribunals are always triable as ordinary proceedings, except where • the statute clearly provides otherwise. The holding in Young v. Rann, 111 Iowa 253, announced no 'different rule. The ruling there was that an appeal from the board of supervisors in this class of cases brought the issue to the district court for trial after the manner of appeals from the judgment of a justice of the peace, and that it is to be heard and decided on the evidence produced on trial of the appeal; but this is very far from holding that, on appeal from the district court to this court, the issue is to be tried anew, as one in equity.

Such being the situation, the finding of the trial court upon all disputed matters of fact is binding upon us, unless we can say, from an examination of the record, that there is no evidence whatever to justify the conclusion announced by the court. The veracity of witnesses, the weight and value to- be accorded to their testimony, and the preponderance of evidence, were for the decision of the trial court, and its finding is to have the force and effect of a jury verdict. Each of the assignments of error, 1, 2, and 3, simply call into question the holding of the trial court upon the facts. • We think the record is not so barren of evidence in support of these findings that we can dispose of them as. matters of law.

2' whenDAsVeaf ' non essential. II. The other question raised arises as follows: To the list of subscribers filed by the appellee and produced in evidence, there was attached an affidavit of verification, purporting to have been made by H. M. Guy, and to have been subscribed and sworn ^ ^ KLoster, clerk of the district court of Story County, Iowa; but it was not attested by the impression thereon of the clerk’s seal. The court, thereupon, and over the objection of appellant, allowed the amendment of the verification by adding the seal thereto. This ruling is argued by appellant as reversible error.

3 'amendment/ The exception is untenable. The seal constituted no part of the oath of the affiant. Its effect is to afford primafacie evidence of the official character of the officer properly using it, and of the regularity of the certification. If the statute creating the office and defining the duties of the officer does not require him to attest his signature by a seal, then the failure to use the seal does not affect the validity of the act. The statute which empowers the clerk of the district court to administer oaths (Code Section 898) makes no requirement that the act shall be attested by the seal of the court of which he is an officer. It is otherwise when he takes the acknowledgment of a conveyance (Code Section 2959), and where he issues the process of the court (Code Section 282.) But even if it should be held that an affidavit is insufficiently attested without a seal, ^ is within the discretion of the court to permit its amendment when offered in evidence. Rindskoff v. Malone, 9 Iowa 540. In the cited case, the notary had failed to attach his seal to his official signature; and the court, while saying that an objection thereto, if properly taken, would be good, further says that, if objection had been made:

“The notary would have had the right, at the time, to affix his seal, and thus every difficulty would have been obviated.”

And while, in some of our earlier cases, it seems to have been held that failure to attach the proper seal to a process of the court could not be cured by amendment (Foss v. Isett, 4 G. Greene 76), the later cases, perhaps under more liberal statutory provisions, have held even such defect amendable. Murdough v. McPherrin, 49 Iowa 479. See, also, Hallett v. Chicago & N. W. R. Co., 22 Iowa 259.

4. Evidence: natures. s Again, in the case before us, the affidavit was sworn to before the clerk of the trial court. That court will take judicial notice of the official character and signature of its clerk, without reference to whether it is attested by a seal. Finn & Co. v. Rose, 12 Iowa 565; Wetmore v. Marsh, 81 Iowa 677, 680. In our judgment, the court could well have held the affidavit sufficient even without the amendment, and the order permitting such amendment was, therefore, without prejudice to the appellee’s rights in the premises.

The judgment appealed from must be — Affirmed.

All the justices concur.