Snell v. Eckerson

8 Iowa 284

• Court: Supreme Court of Iowa
• Decided: April 12, 1859
• Status: Published

Opinion

Weight, 0. J.

The objection made to the affidavit for the attachment, so far as urged in argument, is, that it docs not appear that the justice before whom the petition was sworn to, was an officer within this state,, nor does it appear where the affidavit was made. The first part of this objection was not made in the court below, and is, therefore, not considered here.

The affidavit attached to the petition, is signed, and then follows these words: “ Subscribed and sworn to before me, this 26th day of February, 1858. IT. B. JMLartin, J. P.” The petition is entitled, and directed to the district court of Hamilton county, Iowa, and all the proceedings run in the name of said state. The presumption is, that the justice administered the oath within the proper county. Code, section 2512. The failure to set out more definitely, the county and state where the oath was administered, was an omission which could not, under the circumstances, be so material as to prejudice the appellant, and was therefore properly disregarded. Section 1758.

The bill of exceptions recites, that plaintiffs “ offered in evidence his book of original entries, to show the payment of the account to Hancock & Co., for the defendant, and then offered the books of Hancock & Co., without any proof of authority by defendant to plaintiffs, to pay the same, except the charge of money paid on the books of plaintiffs, and defendant objected to the admission of the books of H. & Co., without first showing some authority to plaintiffs to pay said indebtedness, or an assignment of the account, in some other manner than the charge on the plaintiffs’ boobs.” The objection was overruled, and the evidence admitted.

Defendant could not be made liable in this action, for the item of $45 35, unless his request to plaintiffs to pay the same, was proved by other evidence than that furnished by the books. 2 Smith’s Lead. Cases, 349, 372; 1 Greenl. Ev., section 118, note 1; Hagge v. Veiths, ante 163 ; Young v. Jones, ante 219; Sloan v. Ault, ante 229. In receiving such evidence, therefore, the court erred, and the judgment is reversed.