Littleton v. Christy's Adm'r

• Decision Date: 31 March 1848
• Parties: LITTLETON v. CHRISTY'S ADM'R.
• Court: Missouri Supreme Court

11 Mo. 390

LITTLETON

v.CHRISTY'S ADM'R.

Supreme Court of Missouri.

March Term, 1848.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

This was an action of assumpsit brought by Michael Christy in his life-time, to the use of James Christy, v. Littleton, the plaintiff in error. The declaration contained, first a special count upon a promissory note for $2,000, alleged to have been made by the plaintiff in error to the plaintiff in the court below; and second, the common counts in the usual form. The suit was brought on 29th August, 1843, and at the appearance term, the defendant, Littleton, filed the plea of the general issue.

On the trial, the plaintiff below offered to read in evidence the deposition of G. Hamilton, to which the defendant objected, on the ground that the notice was insufficient. The notice was in the usual form, and was served on 19th September, 1846, on the defendant in St. Louis county. The notice specified the office of John H. Watson, in the city of St. Louis, as the place, and 22nd September, 1846, as the time for taking the deposition--at which time and place it was taken. The court overruled the objection to the notice, and allowed the deposition to be read, to which the defendant excepted. On the trial of the exception to the deposition, the plaintiff read a rule of said Court of Common Pleas, which provides in substance that no exception to a deposition shall be allowed, except to the competency or relevancy of the testimony, unless the exception be filed in writing before the trial, provided the deposition is filed two days before the trial. The court below was of opinion that under the rule aforesaid, the objection to the notice came too late, and also that the notice was sufficient. The plaintiff, to prove that Darby was administrator of Michael Christy, offered to read a certificate from the Judge of the St. Louis Probate Court, which certificate contains a copy of a note or notice in writing, signed by John F. Darby, as public administrator of St. Louis county, dated 25th September, 1846, addressed to Peter Ferguson, Judge of said Probate Court. notifying said judge, that he (Darby) had, on the day of the date thereof, taken charge of the estate of Michael Christy, deceased, for the purpose of administering the same. The certificate of the probate judge states, that Darby then was public administrator of St. Louis county, duly appointed and qualified, and acting as such, and was so at the time of his taking charge of said estate, and that at the date of said certificate, he (Darby) was acting as administrator of said Christy. The defendant below objected to this certificate as incompetent evidence, and insufficient, but the court overruled the objection and allowed it to be read, to which the defendant excepted. No instructions to the jury were asked on either side, and none given. The defendant moved for a new trial, because the verdict was against law and evidence; because incompetent evidence was allowed to go to the jury, and because the damages were excessive. The court overruled the motion, and the defendant excepted, and has brought the case to this court.

CROCKETT & BRIGGS, for Plaintiff.

1st. The deposition of Hamilton should have been excluded from the jury. There was not three days' notice as required by statute; and under the rule of court, as read in evidence the objection might well be made at the trial. 2nd. The certificate of the judge of probate, was not competent evidence of Darby's appointment as public administrator; the best evidence was a certified copy of the order appointing him, and of his official bond--and this should have been produced. 3rd. The public administrator is only authorized to take charge of the estates of deceased persons, in certain contingencies. There is nothing in the certificate of the judge of probate showing that Darby, as public administrator, was authorized to take charge of Christy's estate, either by an order of the Probate Court, or because it was in such a condition as to require the interference of the public administrator. Rev. Code of 1845, p. 109. 4th. The certificate of the judge of probate, that Darby in his capacity of public administrator, was acting as administrator of Michael Christy, is not competent evidence to show that he was lawfully or rightfully acting as such administrator. So far as the certificate shows, he acted without authority from the Probate Court, and there is no evidence that the estate was in such a position as to justify his interference. 5th. The damages were excessive, and the verdict should have been set aside. 6th. Darby had no authority, as public administrator, to take charge of the estate without first obtaining an order of the Probate Court to that effect, nor can he maintain this suit as such, in the absence of such an order.

HOLMES, for Defendant.

1st. The objection taken to the deposition of Hamilton, on account of the notice, was not in time under the rule of court. 2nd. The notice was sufficient. Columbia Turnpike Road v. Haywood, 10 Wend. 422. The law does not regard fractions of a day in the service of notices--the rule is to reckon one day exclusive, and one inclusive. Nor are the decisions in New York, 5 Wend. 137, Graham's Pr. 573, in contravention of the general rule; for by the rules of court in New York, the day of service is excluded. Rule 62, Graham's Pr. 573. Then taking the day of the taking the deposition, as excluded by the terms of our statute, there is no rule of court, nothing in the terms of the statute, to exclude also the day of service; and the general principle applies, that the law will regard a fraction of a day as a whole day. Charles v. Stansberry, 3 Johns. R. 261; a four days' notice served on Thursday for Monday, is good, notwithstanding a Sunday intervenes. The plaintiff in error seems to lay some stress upon the accidental circumstance, that the officer in his return on the notice says, “served in the county of St. Louis,” as if that might mean somewhere in the county out of the city, when the defendant, Littleton, resided in the city, and the notice was served in the city in point of fact, which indeed is in the county, and nothing appears in the record to show the contrary. 3rd. No letters of administration are necessary to be issued to the public administrator, and no order of Probate Court is necessary to authorize him to take charge of an estate, but it is his duty by law to take charge of, and administer upon estates in certain cases specified by statute. Rev. Stat. 1845, p. 109, § 8. 4th. The certified copy of the record of the notice of the public administrator, that he had taken charge of this estate, and the certificate of...