Goodrich v. Conrad

24 Iowa 254 | Iowa | 1868

Beck, J.

1. etcdenoe : an estate. I. The certificate was not competent evidence to prove the facts therein stated. Matters of record are proven by properly authenticated transcripts, by copies verified by the oath of competent witnesses, or by the production and identification of the record itself. The certificate of the custodian of the record, stating its contents, is not admissible in proof thereof; neither would such certificate be received as evidence of the contents of a lost or destroyed record, and the same reason for the rule in these, cases will not admit proof of facts, which are required to be of record, but which have been omitted, by the certificate of the officer required to keep such record. In order to enable the District Court to entertain jurisdiction of the case, if objected to in limme, it was necessary to prove that it was prosecuted with the approbation of the County Court.

We are not prepared to hold that such approbation, expressed in any other way than by record, would be insufficient, though, doubtless, the better practice is to enter upon the record matters of this kind.

The same remark is applicable to the manner of proving that the claim was sworn to when filed in the County Court. A preferable way, however, to have supplied the evidence, would have been a nimo fro tunc record thereof, which, properly authenticated,, would have established the contested facts. We are of the opinion that the certificate of the county judge was improperly admit ted in evidence.

2. Executor TBATOK^fiiing Btat!.wmof: limitations. II. The cause of action was not barred by section 2405 of the Revision. The claim is of the third class, having been filed January 30, 1866, and the notice, referred to in this section, given November 15, 1865. The bar, therefore, does not apply, and the claim may be proven after the expiration of eighteen months from the date of filing. Noble v. Morrey, 19 Iowa, 510.

3._failure c?a!S when alea. But it is insisted that the claim was not properly filed, because it was not sworn to. As a. matter of fact it was filed, and the omission of the oath required by section 2391, did not fender the filing void, The oath can be administered after the filing; the provision in regard thereto, being directory, will be thus sufficiently complied with.

Because of the error in admitting the certificate of the county judge in evidence, the cause is

Reversed.