Littleton v. Christy's Adm'r

11 Mo. 390 | Mo. | 1848

Napton, J.,

delivered the opinion of the Court.

The only errors insisted on, are the admission by the Court of Common Pleas of the deposition of Hamilton,' and the certificate of the Probate Judge.

The objection to the deposition was, that-'the notice was insufficient. The notice was served on the 19th September, and the 22nd of the month was the day designated for taking the deposition. If we exclude the day on which the notice was served, and the day fixed for taking the deposition, there was not a notice of three days, and this would seem to be the most sensible construction of the statute. But in the construction of similar statutes, the rule appears to have been generally adopied of reckoning one day exclusive and one inclusive. 3 J. R. 261; 10 Wend. 422. The notice in this case was then sufficient, unless the party-notified lived more than twenty miles from the county seat, and how this was does not appear.

It is sufficient, however, to say, that the objection came too late. The rule of court provided that no exception to a deposition, where it had been filed two days before the trial, should be allowed, unless the exception had been filed in writing before the trial, or unless it were an exception to the competency or relevancy of the testimony- The deposition of Hamilton, the record shows, had been filed more than two days, and no written exception had been filed before the trial. The exception taken on the trial was surely not to the relevancy of the testimony, nor was it an exception to its competency. By the latter phrase we must understand the competency of the witness, who has testified, or of the testimony given by a competent witness. The testimony may be hearsay, or in conflict with some other rule of evidence, and may, under the rule, be objected to at the trial. But defects in the notice must be pointed out before the trial.

The certificate of the Probate Judge, which was also objected to, is in the following words:

“To Peter Ferguson, Esquire, Judge of- the St. Louis Probate Court for the county of St. Louis: Sir — I have this day taken charge of the estate of Michael Christy, deceased, for the purpose of administering on the same. Very respectfully, John F. Darby, Public Administrator of St. Louis county. St, Louis, 25th Sept., 1846. Filed 25th September, 1846, Peter Ferguson, Judge of Probate. State of Missouri, county of St. Louis, ss. I, Peter Ferguson, Judge of Probate of the county of St. Louis, in the State of Missouri, certify that the foregoing is a true copy of the notice of John F. Darby, Public Administrator of the county aforesaid, of his having taken charge of the estate of Michael Christy, deceased, as the same now remains of record in my office, that the said John F. Darby is Public Administrator of the county aforesaid, duly appointed and qualified, and acting as such, at the time and previous to the time of having taken charge of the estate of the aforesaid Michael Christy, and that he is now acting as administrator of said Michael Christy, deceased. In testimony whereof, &c.” This certificate is signed by the Probate Judge, and his official seal attached.

The Probate Court of St. Louis has succeeded to all the duties of the County Court, touching the administration of estates, and it is a court of record. The judge officiates as the court and clerk. The acts of this court must appear of record, and its records can be authenticated by the judge, as the records of other courts would be authenticated by their clerks. The Public Administrator is appointed in St. Louis by the Probate Court. That appointment is, of course, a matter of record. The act which authorizes the appointment, and prescribes the duties of the Public Administrator, provides, (sec. 3rd) that “his certificate of appointment, official oath and bond, shall be filed and recorded in the office of the Clerk of the County Court, and copies thereof, certified under the seal of the County Court, shall be evidence.” There is no difficulty, then, in proving the appointment of a Public Administrator by the Court of Probate of St. Louis county, since that court occupies the same position which the county courts do under the general law, and the statute points out the mode of proving the appointment of public administrators, when made by the county courts. The certificate of the Judge of the Probate Court of St. Louis, that Darby was the Public Administrator of that county, duly appointed and qualified according to law, is certainly a novel and unprecedented species of evidence. We know of no principle upon which it can be admitted. If the clerk of the county court, in counties where that court still retains its general jurisdiction, should certify that A. B. was public administrator, such certificate would surely be no evidence of the fact, for the law has given him no special authority to make such a certificate, and his general duties and powers as clerk only authorize him to certify to the records of his court, and not to matters of mere opinion or private knowledge. So the probate judge can certify only as clerk of the probate court, to such matters as appear of record in that court, or in such other cases as the statute may specially authorize.

But the plaintiff desired to prove, not only that Darby was Public Administrator, but that as such he had taken charge of .the estate of Michael Christy. It is made the duty of the Public Administrator, in certain cases specified by the statute, to take charge of estates of deceased persons. The probate court has the same control over the conduct of the public administrator, which it has in the case of administrators appointed in the usual mode to administer upon public estates. Although the probate or county court superintends the acts of the public administrator, the statute does not require the public administrator to get the opinion of that court upon the propriety of. his taking charge of estates in the condition specified by the act. The administrator must determine for himself whether the situation of an estate is such as to authorize his interference. . For it is also provided in the same act, that in addition to the cases specified, in which the public administrator may take charge of an estate, the probate court may order him to take charge of an estate, for causes and purposes therein enumerated. The act is silent as to the mode by which the probate court shall be. apprised of the fact, that the public administrator has taken charge of an estate, supposed to be in the condition described in the statute. It seems to be the practice in St. Louis for the Public Administrator to give the Probate Court a written notice of this fact, which is entered upon the records of that court. We see no objection to tiis course, and the certificate of the Judge to the notice thus recorded, is evidence of the fact. But the certificate of the Probate Judge, that Darby was Public Administrator, we think incompetent, and shall therefore reverse the judgment.

The other Judges concurring,

the judgment is reversed and the cause remanded.