Dessaint v. Foster

• Citation: 34 N.W. 454,72 Iowa 639
• Parties: DESSAINT v. FOSTER, ADM'R, ETC.
• Decision Date: 15 October 1887
• Court: United States State Supreme Court of Iowa

72 Iowa 639

34 N.W. 454

DESSAINT

v.FOSTER, ADM'R, ETC.

Supreme Court of Iowa.

October 15, 1887.

Appeal from district court, Scott county.

Plaintiff filed a claim against the estate of which defendant is administrator, and caused defendant to be served with an original notice, which informed him that the claim would be for hearing at the February term, 1886, of the district court; the matter of the settlement of the estate having been previously transferred from the circuit to the district court. Defendant did not appear at that time to resist the allowance of the claim, and, upon a hearing, the court entered an order allowing it, and directing defendant to pay it out of the assets of the estate in his hands. At the next term of the court he appeared by his attorney, and filed a motion to set aside the order of allowance, which was sustained, and the present appeal is from that order.Charles Whitaker, for appellant.

George E. Hubbell, for appellee.

REED, J.

The motion to set aside the order allowing plaintiff's claim was sustained by the affidavit of defendant's attorney in which he testified that, when the original notice was served on defendant, he requested plaintiff's attorney to inform the affiant of the filing of the claim; and that said attorney neglected to do that, but called up the claim at a time when neither defendant nor his attorney was in court, and procured its allowance. It is also alleged in the affidavit that plaintiff “has no claim, in law or equity, against the estate.” It was on the showing contained in that affidavit that the order appealed from was made. It is to be observed that the statement in the affidavit as to what had taken place between defendant and the attorney for plaintiff relates to a matter which, from the nature of the case, could not have been within the personal knowledge of the affiant. As to that matter he testified from information derived, as we suppose, from his client. His testimony on that point is hearsay and incompetent, and it appears to us that nothing is shown by his testimony which warranted the district court in settingaside the order. It is true that the order allowing the claim is not technically a judgment, (Foteaux v. Lepage, 6 Iowa, 123;Voorhies v. Eubank, Id. 274; Little v. Sinnett, 7 Iowa, 324;Smith v. Shawhan, 37 Iowa, 533,) and we do not hold that the application for its vacation is governed by the rules which apply when an ordinary judgment is sought to be set aside....