4 Iowa 587 | Iowa | 1857
I. The demurrer was waived by the subsequent answer of defendant. If a party desires to have this court review the decision of the District Court, in sustaining or overruling a demurrer, he must suffer judgment in chief to be rendered in that court on the demurrer. Taking a bill of exceptions will not raise any question for the adjudication of this court, if the demurrer has been waived by pleading over.
II. The third assignment of - errors is upon the refusal of the District Court to suppress the deposition of Jacob H. Combs, taken on the part of the plaintiff. The reasons urged in favor of the motion to suppress the deposition are:
1. That the commission is directed to thé “ clerk of the District Court of Morgan county, Indiana,” — and the deposition is taken and certified by and before the “ clerk of the Court of Common Pleas ” of Morgan county, Indiana.
2. That said Combs, the witness, is a party to the will referred to in petition, and is consequently an interested witness.
3. That the commission is not issued in the name of thd District Court of Jasper county.
4. That an exhibit is referred to by the witness in the deposition, which is not appended to the deposition, nor any copy of the same, and no reason is shown for such failure.
5. That the certificate of the clerk is insufficient in this, that it does not show that the deposition was subscribed and sworn to by the witness, at- the time and place therein mentioned.
The first objection to the admissibility of the deposition is, we think, well taken. If it were made to appear in any sufficient manner, that there was no “ district court ” in Morgan county, Indiana, and that the “ Court of Common Pleas,” was a court of the same character and jurisdiction; we think the fact that the deposition was taken by tbe clerk of the “ Court of Common Pleas,” and not bjr the clerk of the “ District Court,” would furnish no sufficient reason for suppressing the deposition. In this case, however, there is nothing in the record, from which we are authorized to infer that there was not in Morgan county, a district court, with a clerk, which clerk alone, in such case; was the proper person to have taken the deposition.
IIL Some of the remaining objections are relied upon as sufficient, and some are not. We are of opinion, they are not well taken. The direction of the statute, (§ 2455,) that the ■commission issue in the name of the District Court, is sufficiently answered, if it is shown that the commission is issued by tbe elerk under tbe seal of tbe court. It will be presumed to have issued by authority of tbe court, which, for all practical purposes, is the same as if it had formally issued in its name. The certificate of the clerk is not as full and specific as it might have been made — but taking the whole of it together, and in connection with the caption, we think it sufficiently shows that the deposition was subscribed and ■sworn to by the witness, at the time and place therein mentioned, We have thought it advisable to notice thus particularly, the questions arising on the third assignment of errors, as the same may arise again in the District Court, if any further proceedings are had in the cause.
IY. The fourth assignment of errors is upon the refusal of the court to arrest the judgment, and order a new trial ■on defendant’s motion. The evidence before tbe District Court is all set forth by the bill of exceptions. It consists -of a certified copy of what purports to be the will of Zur Combs, of Highland county, Ohio, and the deposition of
“ 4. To my son Jacob W. Combs, I will and bequeath one hundred and fifty dollars, to be paid by Barbara Ann Roads and Philip Roads, her husband, in two years after they obtain clear and full possession of the farm I, by this will, bequeath to them; the $150 to be paid in property.
“5. To Eliza B. Plummer, I bequeath one hundred and forty dollars, to be paid in good property, as above, by said Barbara and Philip Roads, in two years after they get possession of said farm.”
The “ full and clear possession ” spoken of in the will, was to take place on the death of Mary Combs, the wife of the testator, who it is shown by the deposition of Jacob H. Combs, had been dead some fifteen years before the suit was brought. The plaintiff avers in his petition that the defendant undertook and promised to pay to the plaintiff the one hundred and forty dollars mentioned in the will, in pursuance ofj and as set forth in the said will. On this averrment, issue is joined. It is shown by the testimony of Jacob H. Combs, before referred to, that the defendant had taken possession of the farm some twenty-eight years before, and the witness had often heard him say he owed the plaintiff, the one hundred and forty dollars, on account of the farm bequeathed to defendant. This,- however, is all the testimony. There is no evidence that plaintiff had ever demanded of defendant the amount “to be paid in good property,” according to the tenor of the will.. Until such demand is shown, the plaintiff is not entitled to recover, and the verdict is not sustained by the evidence.
V. There was no issue joined on the plea of the statute of limitations. The affirmative allegation of plaintiff’s replication, that defendant had not been a resident of the state of
Judgment reversed.
