6 Iowa 274 | Iowa | 1858
— The motion by defendant to dismiss the suit, was correctly overruled. Although the record does not show that the county court acquired jurisdiction of the cause, in the manner prescribed by law, yet it appears by the entry of the county judge, that “the parties appeared,” and the hearing was continued until the regular term in August. At the August term, the transcript states that, “ by request of parties,” an auditor was appointed to audit the plaintiffs’ claim, and report to the court. At the November term, the auditor having reported that the estate of S. T. Carey was indebted to the plaintiffs in the sum of $1954,35, judgment was rendered accordingly. The executrix might have objected in the county court, that the claim of the plaintiff had not been stated, sworn to and filed, as required by law. She might have objected, that ten days notice of the hearing, indorsed upon a copy of the claim, had not beep served upon her, in the manner required for the commencement of actions in the district court. Code, section 1359. But after having appeared, without making these objections at the earliest opportunity ; and after having consented to a continuance of the cause, and to the appointment of an auditor, she cannot be permitted, in the district court, to object that she was not duly served with notice of the hearing, nor to contradict the record of the county court, in order to show that she did not make any appearance in the suit, or waive the want of notice.
The second assignment of error, is upon the order of the district court, affirming the judgment of the county court, without giving the defendant an opportunity to try the
It is, in the third place, assigned for error, that the district court rendered a personal judgment against the executrix, for which she is personally liable, instead of a judgment against her in her official capacity, for which the estate is liable, The right of the court to render the judgment in either form, is not apparent. It is to be borne in mind, that this is a proceeding in probate, by the plaintiffs, to have a claim against the estate of Carey, allowed by the county court, and to obtain an order for its payment by the executrix. It is to be, in all things, governed by the statute. It is not to be likened to an ordinary suit at law, between parties litigant; and yet, it is so far like it, that there should be both a plaintiff and a defendant. It is to be commenced in the manner required for commencing actions in the district court, and is to be governed by the same rules, in the admission of testimony. Code, sec. 1359,
The executrix, and not “ the estate of S. T. Carey,” should have been the defendant in the suit. No judgment or adjudication could have been made against “the estate” as defendant, as against a natural person. It is a confusion of terms, as well as of ideas, to adopt such a form of expression. This confusion is most notably exemplified in the present record. A judgment is rendered in the county court, against “ The Estate of S. T. Carey ” as defendant, and the executrix takes an appeal to the district court. In that court, the proceeding is carried on against “the estate of S. T. Carey,” as defendant; but judgment is rendered against Martha E. Eubank, executrix, &c., and “ The Estate of S. T. Carey,” takes the appeal to this court. As the parties have taken no exception to this form of entry and proceeding, in the district court, but have permitted it to pass unquestioned, we have perhaps gone aside in making this much comment upon it. We take occasion, however, while the subject is up, to express our strong disapprobation of the practice of making up the records of the county and district courts, in such carelessness and confusion.
Allowing that the executrix of Carey, in an appeal taken as this is, by “ the Estate of Carey,” can object to the form of the judgment against her by the district court, we think that the objection made by her is well taken. In the first place, there should have been no judgment of recovery against her. The only question before either the county or district court was, whether the claim be allowed by the court and paid by the executrix, as other claims. In
Judgment in part reversed, and in part affirmed.