Citizens' Bank v. Rhutasel

• Citation: 25 N.W. 261,67 Iowa 316
• Parties: CITIZENS' BANK v. RHUTASEL, DEFENDANT, AND ANOTHER, INTERVENOR.
• Decision Date: 23 October 1885
• Court: Iowa Supreme Court

67 Iowa 316

25 N.W. 261

CITIZENS' BANK

v.RHUTASEL, DEFENDANT, AND ANOTHER, INTERVENOR.

Supreme Court of Iowa.

Filed October 23, 1885.

Appeal from Franklin circuit court.

Action on a promissory note executed by defendant, N. J. Rhutasel. A writ of attachment was issued in the cause, and was levied on certain personal property. William Trigg, as administrator of the estate of Lawrence Rhutasel, deceased, filed a petition of intervention, in which he alleged a claim to the attached property under a chattel mortgage, executed by defendant, N. J. Rhutasel, to Lawrence Rhutasel to secure a promissory note for $588. In his answer to this petition plaintiff alleged that said chattel mortgage was given for the purpose of hindering and delaying the creditors of N. J. Rhutasel in the collection of their debts, and that it was executed in pursuance of a corrupt and unlawful combination and agreement between N. J. Rhutasel and his wife, and Lawrence Rhutasel, his father, and John Rhutasel, his brother, and the intervenor, his brother-in-law, to cheat and defraud plaintiff and the other creditors of N. J. Rhutasel. It also alleges that intervenor's appointment as administrator was made without authority of law, having been made by the clerk of the circuit court at a time when the court was in session. At the close of the testimony the court directed the jury to find for the intervenor, and a judgment was entered in his favor on the verdict returned in accordance with this direction. Plaintiff appeals.Taylor & Evans, and D. W. Dow, for appellant, Citizens' Bank.

Harriman & Lake, and J. H. Bradley, for appellees, N. J. Rhutasel and another.

REED, J.

On the trial intervenor offered in evidence his letters of administration. These letters were signed by the clerk of the circuit court, and were issued under the seal of that court, and were dated at a time when the court was in session in Franklin county. Plaintiff objected to the admission of said letters in evidence on the ground that the clerk had no power during the term of the court to appoint an administrator, but the objection was overruled.

It will be conceded that during the session of the court the power to appoint administrators is in the court, and not in the clerk. Code, §§ 2312, 2315. It does not appear, however, that the appointment in question was made by the clerk. The only evidence that it was so made is the fact that the letters of administration are signed by him. But the office of the letters is to define the powers of the administrator, and they are not the evidence of the source of his appointment. If the appointment is made in term time, it should be made by the court, and the clerk has power in vacation to make it. But in either case it is the duty of the clerk to issue the letters of administration, and they should be signed by him, and be issued under the seal of the court. See Code, § 2365. The objection was properly overruled, then, on the ground that the letters of administration afforded no evidence of the fact on which it was based, and we need not consider whether the regularity of the appointment could be questioned in a collateral proceeding, a question which was argued by counsel.

2. Plaintiff offered to read the answers of a witness whose deposition had been taken to certain of the interrogatories which were asked him. The deposition was taken by intervenor, but was not introduced by him, and he objected to plaintiff's being permitted to introduce but a portion of it. It is well settled that one party may introduce a deposition which was taken by his adversary, but which he declines to introduce. See Hale v. Gibbs, 43 Iowa, 380;Wheeler v. Smith, 13 Iowa, 564;Pelamourges v. Clark, 9 Iowa, 1. But whether he should be permitted in such case to introduce but a portion of such deposition depends, we think, very largely on circumstances. If the witness has been examined as to different transactions, we see no reason why the opposite party should not be permitted to introduce his evidence touching one or more of the transactions while declining to introduce it as to the others. But he clearly ought not to be permitted to introduce a portion of his testimony on any given subject while declining to introduce all that the witness had said on that subject. It would be manifestly unjust to permit him to select such portion of the testimony with reference to a particular transaction as is favorable to him and introduce that,...