Carnes v. Crandall

| Iowa | Apr 14, 1860

Lowe, C. J.

This cause is now for the second time before this court for the correction of errors.¹ The determination of tbe questions raised and settled in tbe previous examination of it, is affirmed, and they will not again be noticed although some of them are again presented.

The hearsay evidence relied upon to show that Anson Crandall was dead at the time the judgment, now sought to be revived, was rendered against him, in September 1857, was in our judgment properly adjudged to be incompetent and insufficient to establish that fact. It was not brought within the rule for the admission of that description of testi-. mony. The information set out in the testimony, did not emanate from the family or connections of the deceased, but from strangers who were not only competent, but whose testimony could have readily been obtained. Eor the purposes of the defense the point of time when Anson Crandall died was a material and incidental fact, and should have been proved by original or primary evidence, because the rights of the parties at this late day, might be materially changed, if the death of Crandall in fact occurred previous to the rendition of the judgment against him. The proof, however, failing to establish that fact, it is not now important to speculate upon the consequences that would have followed from such a contingency.

There being then no sufficient showing that the death of Crandall occurred anterior to the rendition of the judgment against him, it follows that the most of the other points raised fall to the ground. Tbe supposed statutory limitation against the allowance of the claim is sufficiently answered by the court in its previous adjudication of the cause.

There is much confusion and vagueness in the record of this cause. It is competent for the party to revive a judg-. ment against an executor or executrix by a petition in an ordinary proceeding, or by scire facias. The former course was pursued in this case, yet a writ of scire facias is also found in the record, to which both the demurrer and answer of the defendant seems to apply, and although the plaintiff disclaims that it is any part of his pleadings. The bills of exceptions are also uncertain and blindly prepared, so that a number of errors complained of in this case are matters of inference. We do not deem it necessary to repeat wbat this court has frequently decided, that the error to be considered must appear affirmatively on the record. Nor will we consider points raised by demurrers which have been raised by answers or replications.

Judgment affirmed.