Case 36 — PETITION ORDINARY

November 16.

#### Farley, Etc. v. Lewis’ Adm’r.

APPEAL PROM HARLAN CIRCUIT COURT.

1. County Judges — Acceptance of Insufficient Bond — Record Evidence. — In an action against a county judge for damages by reason of bis negligence in accepting an insufficient guardians’ bond, tbe record of tbe county court showing tbe approval of tbe bond is competent evidence against bim, althoughl not signed by the county judge as required by tbe statute. Great inconvenience and denial of justice would in many cases result from wholly rejecting as evidence the record of proceedings! of tbe *'county*court simply because tbe judge neglected to sign the same officially; besides, the defendant will not be permitted to defeat a recovery against bim by reason of bis own neglect, as county judge, to comply with tbe law.

FORESTER *&*FORESTER and HOWARD & CLAY for appellants.

TINSLEY & FAULKNER and W. F. HALL for appellee. (Record and briefs not in the office.)

CHIEF JUSTICE LEWIS

delivered the opinion of the court.

The facts as alleged, upon which recovery is sought in this action are, January 3, 1887, Harlan County Court, of which Wilson Lewis was judge, appointed W. G. Farley guardian of Geo. W. Farley, an infant, who in open court executed bond for proper discharge of his duties, with W. G. *235,Hall, his only surety; but said Lewis, though accepting and approving the bond, negligently permitted one M. G. Farley to sign the name of Hall thereto without written authority to do so; that in virtue of that appointment W. G. Farley 'took possession of $1,171.25 belonging to his ward, which he squandered and failed to account for; and that although his successor as guardian, in 1892, sued and recovered personal judgment against him for the amount, no part of it has or, as shown by return on the execution issued, can be collected from him, while in the same action judgment went on a plea of *non est factum*in favor of Hall, the surety.

In his original answer filed in the present action the administrator ¡of .Wilson Lewis, who was then dead, admitted appointment of W. G. Farley as guardian, approval by the county court of the bond tendered and filed; also that Hall did not in person sign, nor in writing authorize another to sign, his name as surety; but denied liability upon the ground that it was a mere judicial error of his intestate in deciding the presence and acknowledgment of the bond in open court by Hall to be sufficient signing in meaning of the statute.

In an amended answer, however, that admission was withdrawn, and instead the allegation was made that defendant, administrator, has been informed and avers there is no order of Harlan County Court showing either the appointment of W. G. Farley guardian or acceptance and approval by the court of the bond in question.

On the trial plaintiff offered to snow by copy of the order, regularly entered of record and attested by clerk of the county court, that in fact W. G. Farley was at the time stated appointed such guardian, and the bond, with his name and that of Hall signed to it, though not by the latter in *236person, was approved by tbe court; indeed tbe bond, as plaintiff offered but not permitted to show, appears to have been endorsed with.name of each, tbe judge and clerk, and filed. But no part of tbe record was permitted by tbe lower court to be read in evidence. And objection to parol evidence of tbe alleged facts being sustained, there was of course failure of proof and consequent verdict and judgment for defendant in the action.

'The reason for such ruling of the lower court is that tbe proceedings of tbe Harlan County Court for January 3, 1887, which included orders appointing W. G.. Farley guardian and approval of his bond, though duly entered by the clerk upon the proper order book, were not, as the statute required, signed by the presiding judge. It is true, as a. general rule, that a record, not made up in the manner required by law is inadmissible as evidence of facts it purports to show; also that parol evidence can not be substituted for record evidence of a judicial proceeding. But as said in Greenleaf on Evidence, section 83, “all rules of evidence, however, are adopted for practical purposes in the administration of justice, and must be so applied as to promote the ends for which they were designed.” Therefore, the rule should be subject to exception when the general convenience requires it.

Besides the inconvenience and denial of justice that would in many cases result from wholly rejecting as evidence the ' record of proceedings of the county court, simply because the judge neglected to sign it officially, there is an additional and peculiar reason why the rule should not be applied in this case. That reason is, that if the record as it stands *237be held unfit to show the facts constituting plaintiff’s cause of action, the neglect of Lewis' as county judge to comply with the law will avail to defeat a recovery against his estate, however just may be the demand.

In our opinion the administrator should not be permitted to raise objection to the record for that reason merely.

The judgment is reversed for a new trial of the action consistent with this opinion .