The record-union., 1891-03-28


uons the court has power to inquire into
and determine who are the heirs of the
deceased and entitled to receive the es-
tate; but the terms of each of these sec
tons show that this power can be exer-
clsed only after the final accounts of the
administrator have been settled.
In view of the principles above stated,
and OF the statute under which the pro-
ceedlngS herein were had, it results that
the Superior Court had no jurisdiction to
entertain the petition of the plaintiffs, or
10 determine who were the legal heirs of
the deceased
The petition of the plaintiffs, under
Wnlch the court proceeded to act and to
render judgment was filed in the
superior Court within less than four
months alter the issuance of letters of adj
m1nlstration upon the estate of the de-
ceased, and the complaint and answers
upon which the issues were tried were all
nieo before the expiration of the year.
The court, however, had no jurisdiction to
entertain any petition for this purpose, or
TO make any order that would be binding
upon the heirs of the deceased, or upon
those who may claim to be such heirs,
until ''dfteT the expiration of one year
1rom the issuing of letters of administra-
ton upon said estate"
1T does not appear from the record that
the respondents made any objection in
the court below to its want of jurisdic-
ton, but they now ask that the appeal be
dismissed upon the ground that the pro-
ceedlng was instituted before the eXpira-
ton of a year after the issuance of the
letters of administration upon the estate
OF the deceased
This court will not, however, dismiss
an appeal from ajudgment of the Superior
Court upon the ground that that court
had no jurisdiction to entertain the pro-
ceedlng when it has assumed such juris-
diction and rendered an affirmative judg-
ment therein. Our appellate jurisdiction
over the judgments Of the Superior Court
includes those in which that court i'm
properly assumed jurisdiction, as well as
those Ill which it was properly enter
tained. 1t is revisory of the action of that
court, and is to be exercised by affirm
ing, correcting, modifying or setting aside
its judgments; whereas, if the appeal
thereirom is dismissed, the judgment
would remain as originally pronounced.
Section 1864, supro, provides, however,
that 'all appeals herein must be taken
within sixty days from the date of the
entry of the judgment, or the order com
planned Of" The Judgment herein was
entered January 3, 1890, and the appeal
therefrom was not taken until June 2,
1890. 1t follows, therefore, that by reason
OF the failure to take the appeal from the
Judgment until more than sixty days
after Its entry, we have no jurisdiction of
that appeal, and it must be dismissed.
The appeal from the order denying the
plaintiffs motion for new trial was,
however, taken within sixty days after
its entry, and can, therefore, be reviewed
by us.
A commission was issued out of the
Superior Court to Orris c. Cobb to take
the dispositions of several witnesses
named therein, one of whom was "Jno.
thompson" of Cincinnati, State of Ohio
At the trial of the cause the respondents
offered to read in evidence the deposition
of James NJ. Thompson, taken under
said commission, to which the appellants
objected on the ground that the commits
sion to Cobb did not authorize him to
take the deposition of James NJ. Thomp-
son, but to take that of one Jno. Thomp-
son. Upon this objection being made J.
G. McBurney testified on behalf of the
respondents that he represented them in
the matter of taking said deposition, and
was personally acquainted with said
James NJ. Thompson at the time of the
issuance of the commission to take his
deposition, and that ''the name intended
to be inserted in said commission was
James NJ. Thompson, and the person
designated as John Thompson in said
commission was IDENTICAL" 1t was not
shown, however, that this fact was known
by or ever communicated to the appel
lants, and the difference in the names
would presumptively indicate different
persons. The court overruled their OBJ
jections, and allowed the deposition to be
read
This ruling was erroneous. The COM
missioner had no authority to take the
testimony of any person other than those
named in the commission; and the testi-
mony of any person not so named was
nt Nn,.lxv FOL Inv l. lx,l.
not have been received in evidence The
real name of the person whom the de-
PENDANTS intended to examine under the
commission should have been given to
the plaintiffs and inserted in the COM
in order that the plaintiffs might
prepare their cross-inter-
rogatories. This not having been done,
the taking of the testimony of James NJ
Thompson was, so far as they We're con-
cerned, purely ec pdrte, and should have
no effect against them in determining the
issues in the case. Brown VS.. South
worth, 9 Paige 351; Scholes VS.. Acker-
land, 13 Ill. $50; Strayer VS.. Wilson, 81
Ia. 565; Denny VS.. Horton, II Daily 361;
Patterson VS.. Railway Company, 81
Mich. 81 In Brown VS.. Southworth,
supra, commission had been issued to
take the testimony of James Hurd,
whereas the true name of the witness who
was intended to be examined, and who
was in fact examined, was linus Hurd
The court, upon the objection of the de-
fendant, excluded the deposition upon
the ground that, lowing to the mistake
i'll his Christian name, he was not one of
the witnesses that the commissioners
were authorized to examine, and would
not, therefore, by the laws of any country
be guilty of perjury if his deposition was
false" In ScholeS VS.. Ackerland, supra,
a commission had been issued to take the
testimony of Seymour Rank, of Cincin-
natl. The deposition of Seigmund Rank,
and signed Seigmund Rank, was taken,
and returned with the commission. The
the trial court to admit the deposition in
evidence, saying: 1.-THE dediputS directed
the commissioner to take the testimony
of one person, and under it the deposition
of another person was taken. The spe-
cial authority was not pursued. The
names were essentially variant, and
clearly indicated different Individuals
We cannot agree with the respondents
that, inasmuch rs other witnesses testi-
fled to the same fact, this was an imma-
terial error. One OF the issues presented
for trial in the case, and which was
sharply contested ON both sides, was
whether the name of the plaintiffs father
was ''Westfield'' or chesterfield" The
respondents alleged in their answer that
the true name of the plaintiffs father was
Charles Westfield, and the court found
that the plaintiffs are the tissue of Charles
Westfield and Mary Westfield, his wife"
1t was for the purpose of establishing
this fact that the defendants issued the
commission to take the testimony of the
witnesses at Cincinnati. This is not a
case where an incidental and collateral
fact which may not be seriously con-
tested has been shown by incompetent
evidence, but the testimony of the witness
bore directly upon the main point in is
sue. In such a case all the evidence upon
that point becomes material, and the in
PRODUCTION of any incompetent testimony
is presumed to cause an injury to the op-