Dayton v. Mintzer

• Decision Date: 11 February 1876
• Parties: LYMAN C. DAYTON, Adm'r, etc., <I>vs.</I> WILLIAM L. MINTZER
• Court: Minnesota Supreme Court

Page 393

22 Minn. 393

LYMAN C. DAYTON, Adm'r, etc.,vs.

WILLIAM L. MINTZER

Supreme Court of Minnesota.

February 11, 1876.

Appeal by plaintiff from an order of the district court for Ramsey county, refusing a new trial, after a trial before Wilkin, J., without a jury.

Gilman, Clough & Lane, for appellant.

Henry J. Horn, Geo. L. Otis, and John Y. Page, for respondent.

BERRY, J.¹

This action is brought for the purpose of testing the validity of an administrator's sale of real estate.

1. It appears that on November 25, 1865, the will of Lyman Dayton, deceased, was admitted to probate in Ramsey county, and the plaintiff appointed administrator, with the will annexed. On January 2, 1867, the probate judge made an order removing plaintiff from administration, and appointing Parker Paine in his place. From the order of removal and appointment the plaintiff attempted to appeal to the district court. By statute such appeal is required to be taken by filing appeal papers within sixty days after notice of the order appealed from. Gen. St. ch. 49, § 16. The plaintiff received notice of the order of removal and appointment on January 25, 1867. His appeal papers, as appeared by the endorsement of the probate judge thereon, were filed May 23, 1867, which was, as will be observed, more than sixty days after plaintiff received notice of the order in question. The plaintiff, for the purpose of proving that his appeal was in time, offered to show by parol that the appeal papers were deposited in the office of the probate judge within the sixty days prescribed by statute, but the evidence was excluded.

By § 7, art. 6, of our constitution, the probate court is declared to be "a court of record." As such, its records import absolute verity as respects a party to the proceedings of which they are records, subject, however, to amendment and correction, in a direct proceeding for that purpose, but not otherwise; and they are, therefore, conclusive upon such party in a collateral proceeding.

By Gen. St. ch. 49, § 7, the proceedings in the probate court, when verbal, are required to be "entered in the minutes of the court, and, when written, to be filed." The evident effect of this is to put the filing upon the same footing as the entry in the minutes — that is to say, to make it a record. As such record it is, against the estate which the plaintiff represents as well as against the plaintiff, conclusive in this action, which is a proceeding collateral to that in which the record — i. e., the filing — was made. It follows that the evidence offered was properly rejected.

This conclusion applies also to the evidence offered by plaintiff for the purpose of showing when the appeal papers were filed in the appeal attempted to be taken from the license to sell, and from the confirmation of the sales made in pursuance thereof.

2. In case of an administrator's sale of real estate the statute (Gen. St. ch. 57, § 35,) requires that notice of the time and place of sale "shall be published in a newspaper

* * * for three weeks successively next before such sale." The plaintiff offered to prove that the notice of sale in this case was published in a daily newspaper once a week only. The offer was rejected.

The plaintiff contends that the rejection was erroneous, because the testimony offered would have shown an insufficient publication. His objection to the publication is that, as it was made in a daily paper, it should have appeared in each daily issue thereof during the prescribed three weeks.

If the publication had...