Kincheloe v. Gorman's Administrators

29 Mo. 421

• Court: Supreme Court of Missouri
• Decided: January 15, 1860
• Status: Published

Opinion

Napton, Judge,

delivered the opinion of the court.

The objections, which were taken to the record of the proceedings in the county court, we think, were properly overruled. It is true that the record does not show that the administrator was duly notified according to the requirements of the statute; nor does it appear that he made a formal waiver of notice in open court; but the record shows that he was present at the trial, and succeeded in getting a judgment in his favor.

In relation to the affidavit, which the law requires from a claimant before the county court is authorized to allow, a claim, there is nothing in the record to show whether it was made or not. But there was no point made on this at the trial. If there had been, the affidavit might have been supplied. Besides, it has been held that this affidavit may be taken ore tenus, and is not necessarily noted on the record. No objection to the instructions being insisted on here, the judgment will be affirmed.

The other judges concur.