Ollschlager's Estate

89 P. 1049 | Or. | 1907

Opinion by

Mr. Chief Justice Bean.

1. The decree appealed from must be reversed. The copy of the entry of the county court disposing of the objections filed to the final account of the administrator, as contained in the transcript, shows that the decision was made “from the records and files in this ease,” and the certificate of the clerk to such transcript states affirmatively that no testimony, deposition or other papers were on file in his office containing toy evidence heard or offered on such hearing. It thus clearly appears from such transcript that the case was decided by the county court without the talcing of testimony, and this record cannot be contradicted or enlarged by án ex parte certificate of the county judge filed in the circuit court after the cause had been argued and submitted: Lew v. Lucas, 37 Or. 208 (61 Pac. 344); State v. McCaffrey, 26 Or. 570 (38 Pac. 932). If the records of the county court did not truly state the facts there was an appropriate and proper method of correcting it, but it could not be done in the manner attempted.

2. The statute gives an heir the right to object to the final account of the -administrator (B. & C. Comp. § 1203), and requires the court to hear any such objections and to allow or disallow the final account in whole or in part, as may be just and right: B. & C. Comp. § 1204. When, therefore, the Widmers, averring that they were heirs, filed objections to the final account, they were entitled to have such objections disposed of in an orderly and legal manner and not summarily dismissed on motion of the administrator on the mere1 assumption’ without proof that they were not in fact heirs of the deceased! The issue tendered by them was one of fact and should have been so considered -and determined upon evidence regularly offered and submitted. • ’

3. It was suggested that the conclusion of the county court was based upon the records and files in a previous guardianship proceeding in the same court to which the Widmers were parties. But the record in the guardianship proceeding, if there is such a record, could not have properly been considered until offered and admitted in evidence, thus giving the objectors an opportunity to make and save any question they might deem advisable as to its competency. The record of each particular case must be complete within itself and exhibit the ground upon which the final- decision is based (Simon v. Durham, 10 Or. 52), and courts will not take judicial notice of former proceedings before them or the contents of their own record in other cases: 17 Am. & Eng. Ene. Law (2 ed.), 926. A judgment or decree must be based upon the record and evidence in the case and not upon some other record not in evidence nor upon knowledge acquired by the judge in some other proceeding.

For these reasons the decree of' the court below -must be reversed and the cause remanded to that court with directions to return it to the county court for such further proceedings as may be proper not inconsistent with this opinion.

Reversed.