Stephens v. WilliamsStephens v. Williams
- Reporters:
- Before:
- Day
*541
Our statute, Secs. 258 and 259, provides that “Thegovernor may appoint and commission one or more notaries public in each county. * ■» * * Before any commission is delivered to the person appointed, he shall procure a seal, on which shall be engraved the words ‘ Notarial Seal,’ and ‘Iowa,’ with his surname at length, and at least the initials of his Christian name.” He is also required to write on his bond, or a paper attached thereto, his signature, and place thereon a distinct impression of his seal, and file such bond in the office of the Secretary of State. Sec. 259. Whilst the statute does not, in terms, prescribe that the acts of a notary shall be authenticated by his seal, yet there could have been no other purpose in requiring him to procure a seal; and in Tunis v. Withrow, 10 Iowa, 305, it is held that “ the official acts of a notary public should be authenticated by seal and signature, and that an affidavit is not proved to have been made, unless the jurat is authenticated by both such seal and signature.” The question now arises whether the wafer in question, with the words written upon it with a pen, is sufficient as a notarial seal. In Gage, Dater & Sloan v. The Dubugue & Pacific Railroad Co., 11 Iowa, 310, a question arose as to the sufficiency of the seal of a commissioner of this state, resident in another state, in which the word “Iowa” was written with a pen in the body of the seal, and not impressed. After referring to the provisions of the law upon the subject, which do not materially differ from those now in *542force, the court say: “ From these provisions of the Code, we are led. to conclude that, before the seal of a commissioner is entitled to credit as evidence, it should have engraved upon it, so that there could be an impression upon paper from it, words showing the name of the commissioner, and the state for which he undertakes to act. Unless the name of a notary public, and the state in which he acts, are engraved upon his seal, so that an impression can be made therefrom, his seal would not be received in evidence.” In Hinckley v. O‘Farrell, 4 Blackford, 185, the certificate and attestation attached to an affidavit taken before a notary public was attested simply by a scrawl. The court said: “We think the objection to the certificate well taken. It is certainly not attested as contemplated by the statute establishing the office and defining the duties of notaries public. The seal attached to the certificate is simply a scrawl, and such as could not have been, intended. By the third section of the act, ‘each notary public shall procure a seal, which shall be called the seal of the. notary public.’ The substitution of a scrawl for the seal thus prescribed is not warranted; and, for this defect, the Circuit Court was correct in dismissing the attachment.” In Dumont v. McCracken, 6 Blackford, 355, it was held that depositions taken by a notary, not authenticated by his official seal, should be suppressed. We conclude that the seal attached in this case was not sufficient.
Section 260 of the Code provides: “When the secretary, of state delivers the commission to the person appointed, he shall make a certified copy thereof and forward the same to the clerk of the District Court of the proper county, who shall file and preserve the same in his office, and it shall be deemed sufficient evidence to enable such clerk to certify that the person so commissioned is a notary public during the timo such commission is in force.” Attached to the notarial certificate in *543question is a certificate under the hand and seal of the clerk of the Wayne Circuit Court, as follows: “I, Ray Haddock, clerk of said county, and clerk of the Circuit Court for the county of Wayne, which is a court of record, having a seal, do hereby certify that Dwight 0. Rexford, whose name is subscribed to the jurat of the annexe‘d instrument, and therein written, was at the time of making such jurat a notary public in and for said county, duly commissioned and qualified, and • duly authorized to make the same. And further, that I am well acquainted with the handwriting of such notary public, and verily believe that the signature to the .said jurat is genuine.” It is claimed that this certificate validates the notarial certificate, even if otherwise-it should be held insufficient. It must be observed, however, that the section above quoted authorizes •the clerk only to certify that the person commissioned is a notary public. It is not made the duty of the clerk, nor has he any authority to certify as to the genuineness of the notary’s signature. That is to be evidenced by the proper notarial seal. Our opinion is that the certificate is insufficient, and that the court should have suppressed the deposition.
The case of Roebke v. Andrews, 26 Wisconsin, 311, is to the same effect. It is true that the dissenting opinion of Dixon, Oh. J., shows that there is great conflict- in the decisions upon the subject, and, were the question res integra, we *544might feel inclined to hold declarations in favor of the title of one in possession of property inadmissible. Put we regard the question as settled in this State by former adjudications.
Reversed.