In re the Estate of Seavey

82 Iowa 440 | Iowa | 1891

Givest, J.

I. The appellee’s motion to strike the abstract, and dismiss the appeal, was submitted with the case, as was also his motion to strike the transcript. The denials as to the abstract and amended abstracts are such as to require the filing of a transcript. The grounds of the motion to strike the transcript are not sufficient, nor are the grounds for dismissing the appeal. Both motions are overr>' led, and the case is considered upon the transcript and arguments.

, II. The only qiu stion made by the appellant in ! argument is that the d 'strict court had no authority to make the nunc pro tunc order that it did, allowing the claim of Helen N. Gault. The transcript shows that tlie claim, duly verified, and indorsed with the approval of the administrator, “with the approbation of the court,” August 13, 1886, was filed August 31, 1886; but there is nothing to show that it was allowed by the clerk, as authorized in section 2408 of the Code. September 1, 1888, Helen N. Gault filed her objections to the final report of the administrator and her petition for his removal. On November 23, 1888, the same were heard, and an entry made, that “it is ordered William W. Sickles be, and he is hereby, removed as administrator of said estate, to which the administrator excepts; and Helen N. Gault moves the court for an order nunc pro tuno, allowing her claim herein filed as of date August 26, 1886,” which motion was sustained. The entry further show's that on his motion the administrator was allowed to introduce additional testimony, and on the further hearing it was ordered that he be removed, and a new administrator was appointed.

The claim of Helen N. Gault having been approved by the administrator,.the clerk should have allowed the same, and made record of the allowances. It was this record that was omitted, and was no doubt omitted through oversight or negligence. It was an entry to be made without further evidence than the claim, as it was verified and allowed at the time of filing, and was just such an entry as the court might order, under the rule laid down in Goodrich v. Conrad, 28 Iowa, 298, wherein it is said: Such entries “must be limited to supplying such entries as have been omitted through oversight or negligence.”

It is said that the appellant had no notice of the application for this nunc pro tunc order. The entry in which it was made shows that it was a part of the proceeding had at the time the appellant’s removal was ordered, and that he was present, and excepted to the action of the court. It is also contended that the court had no evidence upon which to base such an order. It had the verified account approved by the administrator, and filed in the court. The account was one of the files of the estate, a paper pertaining to the matter in hearing, and of which the court might take notice without its being formally introduced in evidence. By this account the court had evidence upon which it could order the record entry of allowances.

It is argued that núnc pro tunc entries are only authorized when something has been done of which no record has been made. Something had been done in this case. The claimant had done all that she could, and all that was required, to entitle her to an allowance of her claim by the. clerk, which he, through oversight or negligence, failed to enter. We are in no doubt as to the authority of the court to order an entry as it did. The action of the court in removing the administrator is not discussed nor complained of, and we, therefore, do not consider it.

The judgment of the district court is affirmed.