167 Iowa 526 | Iowa | 1914
I. Fourteen errors are assigned, but they are not all argued. The maker of the note, Jacob H. Gish, was adjudged insane and committed to the hospital at Cherokee January 7,1909. He was paroled to the custody of his brother September 13, 1909, and discharged January 20, 1910. The abstract recites that he was discharged under section 2288 of the Code. The certificate of discharge is not in the record. But, being discharged under this section of the statute, we take it that he was discharged as cured on that date. About a month after that, or on February 22, 1910, he attended a sale and purchased some live stock, for which he gave his note, and this note is the one sued upon. He was sent back to the asylum in April, 1911, and again paroled, but on April 8, 1912, at the time the notice of this suit was served, he was confined in the hospital.
The service of notice was as follows:
State of Iowa, Cherokee County — ss.:
I, T. L. Long, acting superintendent of the Cherokee State Hospital, located at Cherokee, Iowa, do hereby accept
T. L. Long,
Acting Superintendent Cherokee State Hospital.
B. H. Gish, who was the duly appointed and regular guardian of Jacob, appeared and filed an answer for his ward, alleging that, at the time of the execution of the note, Jacob was of unsound mind and incapable of doing business. After-wards the guardian filed a motion to dismiss the action on the ground that no service of notice had been made on Jacob, or, if the court was of opinion that the case should not be dismissed, the guardian asked that the cause be continued until service could be had. The motion was overruled.
The phrase “acting officer” is used to designate, not an appointed incumbent, but merely a locum tenens, who is performing the duties of an office to which he himself does not claim title. 1 Am. & Eng. Enc. of Law, 577 (2d Ed.); 1 Cyc. 632. Both these authorities cite the same case (Fraser v. U. S., 16 Ct. Cl. 514).
There is no evidence in the record as to how long this
Section 4902 of the statutes makes it a criminal offense for any person to take upon himself to exercise or officiate in any office or place of authority in this state without being legally authorized. Section 4648 of the Code provides that the proceedings of all officers and courts of limited and inferior jurisdiction within the state shall be presumed regular, except in regard to matters required to be entered of record, and except where otherwise expressly declared. We ought not to presume that Mr. Long would commit a crime by assuming to act as superintendent. He appears to have been in charge of the institution. In the absence of evidence, we think we ought to assume that he was so in charge and acting with authority; that he was in fact, for the time being, the superintendent.
Section 3200 of the statute provides that guardians of the property of minors must prosecute and defend for their
As stated before, the note was given February 22, 1910. On January 20, 1910, about one month prior to the execution of the note, defendant had been discharged, under Code, section 2288. This section provides substantially that, when a patient is discharged as cured, the superintendent shall furnish him with a certificate to that effect, and forward a copy to the clerk, who shall record the same in the insane record, and that such record shall be prima facie evidence of the recovery of such person. The record here does not show that such certificate was issued or such a record'was made, but we assume that the officers did their duty and complied with the law.
The last instruction above referred to is as favorable as defendant could ask. Of course the real question is: What
III. The following question was asked B. H. Gish, a non-expert :
Q. From what you know personally, what would you say as to whether your brother was capable of transacting business or not on the 22d day of February, 1910, the date of this note?
It is said by appellee that the affidavit was filed with the petition, but such is not the record. The abstract recites that the petition was filed on the 9th day of February, but the year is not given. We assume it was 1912, because an amendment to the petition was filed November 22,1912. The amendment "simply recites that Jacob H. Gish was then insane, and that B. H. Gish was his guardian, and asking that, in addition to having a judgment against Jacob, plaintiff have an order upon the guardian to pay the judgment from the property, etc. The abstract shows that the affidavit for attorney’s fee was filed February 9, 1913, or one year after the filing of the petition, and some three months after the filing of the amendment to the petition. This was not in compliance with the statute and the holdings of the court. The original notice was served upon defendant April 8, 1912. The notice itself is not set out, and it is not shown what term the notice stated that the defendant was required to appear. It may be that the date given in the abstract, stating that the affidavit was filed February 9,1913, is a misprint or a mistake, but we must go by the record. An additional abstract was filed by appellee, but no correction was made as to this.
Other matters are referred to, but they are of minor importance. All such have been considered, but we do not deem them of sufficient importance to warrant discussion.
The judgment will be modified by striking out the attorney’s fee allowed, and in all other respects the judgment is affirmed. — Modified and Affirmed.