Byington v. Moore
| Decision Date | 12 December 1883 |
| Citation | 17 N.W. 644,62 Iowa 470 |
| Parties | BYINGTON v. MOORE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Page circuit court.
Action in equity for an account and other relief. The court decreed that there was due the plaintiff from the defendant a certain sum, and entered a decree therefor, and also that the defendant should convey to the plaintiff certain land in Page county. Both parties appeal, the defendant perfecting his appeal first.McPherrin Bros., for appellant.
W. W. Morsman, for appellee.
In April, 1856, one Le Grand Byington entered into a contract with Page county whereby he purchased from the county certain land, claimed by the county to be swamp land. He paid a part of the purchase money and took a written contract from the county, obligating it to convey the land to him upon its obtaining a perfect title, and upon his paying the balance of the purchase money. The plaintiff claims that afterwards he became the equitable owner of the land by virtue of an assignment to him of the contract. Le Grand Byington is the plaintiff's father; and it appears that in May, 1861, and when the plaintiff was about 17 months old, his father indorsed upon the contract an assignment in these words: This was duly signed. Whether there was any such delivery of the contract and assignment as to put the assignment in force is one of the questions in dispute.
Sometime prior to 1868 certain difficulties arose in relation to the title to the land, and it became uncertain as to whether a title could be obtained from the county as had been provided in the contract. In view of these difficulties it had become necessary for the plaintiff or his father to employ counsel in Page county. The defendant, as a member of the firm of Moore & McIntyre, was at that time practicing law in that county. On the thirtieth day of May, 1868, the plaintiff's father, it appears, wrote to Moore & McIntyre with the view of employing them, and, as we infer, in the matter of procuring a title to this land. The letter was answered by Moore & McIntyre on the sixth day of June following. Their answer is in these words: Moore called as promised. As to what transpired at the interview the parties differ radically. The plaintiff claims that he at that time, through his father as his guardian, employed the defendant as his attorney to procure a title to the land. The defendant denies this, and denies that he had any knowledge of the plaintiff, and denies that he undertook to act as attorney for him or his father, but says that he purchased in good faith from the plaintiff's father all the equitable interest which he derived from the county under the contract, and in ignorance of any assignment thereof to any one. Whatever the fact may be in this respect, the defendant applied to the county for a title to the lands, representing that he had become the owner of the contract, and induced the county to convey to him, he in the mean time paying the balance of the purchase money. He afterwards sold a portion of the land and received the proceeds. The plaintiff claims that the defendant obtained the title by false representations made to the county and in fraud of his rights.
Before proceeding to the determination of the principal question involved, we find it necessary to determine some questions of practice which are presented by the defendant's appeal. The defendant filed a motion to suppress the deposition of Le Grand Byington, taken on behalf of the plaintiff. The grounds of the motion are stated as follows: The motion was sustained as to the second ground, and overruled as to the other. But, as to the second ground, the court ordered that the clerk amend the commission by affixing thereto the seal of the circuit court, that being the court from which the commission issued and in which the case was pending, and ordered that the deposition and amended commission be returned to the notary public who took the deposition, with leave and direction to said officer to require the witness to reappear before him, and, upon his reappearance, to read over to him the deposition, and to require him to subscribe and swear to the same again, and to certify the same back to the court. The commission was accordingly amended by the addition of the proper seal, and returned, with the deposition, to the notary public, who complied with the directions of the court as above set out. In his second certificate he added that his name is Fred. A. Remley. He signed his name to the certificate as F. A. Remley, and did not append thereto any words showing the official character in which he acted. The defendant moved again to suppress for want of these words. The court sustained the motion, but directed that the deposition and certificate be returned for an amendment to the certificate by appending to the name of the officer the words, “Notary public within and for the county of Johnson, in the state of Iowa,” that being the county for which Remley had been appointed notary public. The deposition and certificate were accordingly returned to him, and the amendment made as directed.
1. The defendant insists that as the commission was issued to Fred. Remley and the certificate was signed F. A. Remley, it does not appear, with proper certainty, that the deposition was taken before the person to whom the commission was issued. The theory of the law is that the clerk of the court from which the commission was issued knew Fred. Remley, or knew of him, and. having confidence in him, issued the commission for the purpose of clothing him specifically with power to do the things named therein. The person executing the commission and making a return of his doings should appear to be the person commissioned, and should so appear of record from a certificate appended to and returned with the commission. Whether a court could presume that Fred. Remley and F. A. Remley are the same person is a question which admits, perhaps, of some doubt. The letter F may be presumed to be the initial letter of a Christian name. Looking at it alone, as used in a given place, we could not say that it is the initial of Fred. in such place; the most that we could say is that it might be. But the fact that it might be taken in connection with two other facts, justifies us, we think, in presuming that the deposition was taken before Fred. Remley. We may presume that the commission was sent to Fred. Remley. It has been returned by some one, and a certificate signed with a name that might be that of Fred. Remley states expressly that it is that of Fred. Remley. The practice of using merely the initial letter of Christian names in executing official papers is not to be commended. It is liable at all times to lead to uncertainty and embarrassment. But in the case at bar, taking the certificate as a whole, we think that the identity of the name Fred. Remley and F. A. Remley sufficiently appears.
2. The next question presented is as to whether the court erred in directing the clerk to affix the seal of the proper court, and to return the commission and deposition to the officer named in the commission. The defendant's theory is that as the motion to suppress was sustained, the commission went for nothing, and that a new commission should have been issued and the deposition retaken. But the order sustaining the motion must, we think, be taken in connection with the order for the reissue of the commission properly sealed. The suppression of the deposition was merely provisional. It was made because an irregularity had occurred, and was to continue only until the irregularity could be corrected and the deposition be refiled, with the proper evidence that the irregularity had been corrected. This appears clearly enough to have been the intention of the court when both orders are considered together. Perhaps the safer and better practice would be, ordinarily, where, through mistake, a deposition has been taken under an unsealed commission, to cause a new one to be issued, that the testimony of the witness may be taken under it. The statute certainly contemplates that the person before whom the deposition is taken shall be clothed with the specific power at that time, and an unsealed commission can hardly be deemed to have that effect. But when it appears with reasonable certainty that no prejudice has been wrought by the reissuance of a commission, as in this case, we do not think that we should be justified in holding it to be erroneous. Whatever irregularity there may have been, it may, we think, be looked upon as an unimportant deviation, and insufficient, under section 3741 of the Code, to justify excluding the deposition.
It is contended, to be sure, that the irregularity is not an unimportant deviation. The point especially relied upon is that it was the defendant's right to have the witness so sworn that he should have the penalty of perjury...
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