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The State v. McIntire.

therefore, see no reason why it should be limited to any particular class of cases.

2.: accomplice:

testimony.

II. The principal evidence relied on by the State was that of an accomplice and it is urged he was not corroborated as required by statute. The evidence of Mary Stevcorroborating ens, if believed by the jury, was clearly sufficient. Counsel for appellant do not claim otherwise, but it is said she was also an accomplice. There is no evidence tending to show that she was. She is the wife of Frank Stevens who is in the penitentiary, but for what crime does not appear. There is no evidence tending to show he aided or had knowledge of the crime charged in the indictment. therefore, see no reason why the evidence of his wife may not be sufficient as corroborating evidence. Her connection with the convict Stevens was a matter for the consideration of the jury. It was for them to say whether she was worthy of belief. If she was the corroboration is sufficient.

3. -: evial charac

ter.

We,

III. The accomplice when on the stand as a witness admitted he had been engaged in horse stealing, whereupon counsel for defendant asked the witness. "How dence: mor- long have you been engaged in horse stealing?" An objection to the question was sustained. It is urged this was error because the proposed evidence was competent as tending to show the moral character of the witness. We are not prepared to admit the moral character of a person who has been engaged in stealing for years, is any worse than that of a beginner. The former may be more expert, and have greater knowledge of the profession, but there is no essential difference in the moral character of each. The defendant was not prejudiced by the action of the court.

4.

: in

IV. Complaint is made of the refusal to give two instructions asked by the defendant. We have carefully compared the instructions refused with those given, and we are unable to discover any material difference between them. Nor has counsel for appellant called our attention to any substantial difference. It was not error therefore

structions: practice.

Vittoe v. Richardson.

to refuse the instructions asked. Complaint is made in a general way of the instructions of the court. We are united in the opinion the charge of the court is clearly correct. The evidence sustains the verdict.

AFFIRMED.

VITTOE V. RICHARDSON.

1. Practice: FINDINGS OF COMMISSIONER: EFFECT OF. In a case not triable de novo, the findings of the commissioner, after the approval thereof by the court, have the force and effect of a verdict of the jury; and when supported by some evidence will not be interfered with, unless clearly the result of passion or prejudice.

Appeal from Harrison District Court.

FRIDAY, JUNE 9.

THE plaintiff is the owner of the west half of the north west quarter of Sec. 18-79-44, and the defendant owns the south-west quarter of said section. The plaintiff filed a petition stating, in substance, that one of the government corners was in fact located south of the Soldier River which runs through the section, but that such corner could not be found, because all evidence of its actual location was lost. He therefore asked the court to appoint a commissioner under the statute to ascertain and report as to the location of the lost corner. The defendant claimed the corner was in fact located north of the Soldier, and he united in asking for the appointment of a commissioner. One was accordingly appointed who heard evidence and made a report of his doings to the court. The commissioner recommended that the corner be established north of the Soldier. The report was approved and judgment entered in accordance therewith. The plaintiff appeals.

58 575

84 239

58 575

115 648

Vittoe v. Richardson,

S. H. Cochrane, for appellant.

Smith & Clyde, for appellee.

SEEVERS, CH. J.-Counsel for appellant have assigned errors and only the questions thereby presented can be con1. PRACTICE: sidered. In the Matter of the Application of

findings of commissioner: effect

of.

Harrington, 54 Iowa, 33. The appellee insists

the errors are not sufficiently specific and therefore do not present any question for determination. With some doubts we hold the errors are sufficiently specific to call attention to the single question pressed in the argument of counsel for the appellant. He maintains the true corner is at the place where the United States surveyor established it whether such location was in fact right or wrong as a subsequent survey might show. This will be conceded. Counsel then proceeded to say: "By an examination of the testimony of Stephen and Chambers Hester

*

you will find testimony as positive as mortal man can make it to the effect, that they saw the quarter post on the south side of the Soldier River the fall after the government survey."

Conceding the evidence of the witness to be of the character stated, and that the commissioner and the court below found against it, the question is whether we can, under established rules, remedy the wrong if there was one. This case is not triable de novo, and therefore the finding of the commissioner and court must have the force and effect of the verdict of a jury. The evidence of said witness related to a period thirty years ago, and there was some evidence supporting the conclusion of the commissioner. It is, and must always be, difficult to locate the true corner when all evidence of its location has been lost. We, therefore, are not disposed to interfere with the finding of the commissioner who has heard the evidence, and been over the ground, when his action has been approved by the court below, unless we are satisfied the commissioner has been governed in his find

Daniels v. Smith.

ing by passion or prejudice. This is not claimed, and if it was, it could not be successfully maintained.

AFFIRMED.

DANIELS V. SMITH ET AL.

1. Estates: SETTLEMENT OF: RES ADJUDICATA: FRAUD AND MISTAKE. The settlement of an estate and discharge of the administrator is an adjudication, binding upon all the parties in interest, that the estate has been properly administered upon; and such adjudication can only be set aside for fraud or mistake, within the time prescribed by statute.

Appeal from Benton District Court.

FRIDAY, JUNE 9.

THE petition states one of the defendants is the widow and the others, heirs at law of W. C. Smith, deceased; that the defendant, H. R. Smith, was appointed administrator of the estate of W. C. Smith; that the plaintiff, after the death of W. C. Smith, was compelled to and did pay certain money the deceased should have paid; that he filed his claim against the estate, which was allowed by the administrator, but no part of said claim has been paid; that shortly previous to his death, W. C. Smith sold and conveyed to his son, Lewellen Smith, and to his widow, a large amount of personal property for the purpose of hindering and delaying his creditors; that said H. R. Smith, while acting as administrator aforesaid, knew of said fraudulent sales, but took no steps to subject the property to the payment of claims against the estate, although the plaintiff repeatedly requested him to do so, and has closed up the business of the estate and been discharged. The relief asked is, that said sales be set aside and the property subjected to the payment of the plaintiff's claim; and if the property has been disposed of, that judgment be rendered against Levene Smith and Lewellen Smith, for the amount due VOL. LVIII-37

Daniels v. Smith.

plaintiff. There was a demurrer to the petition on the ground "said petition shows upon its face that plaintiff has been guilty of laches until his remedy is lost." The demurrer was sustained, and the plaintiff appeals.

Geo. C. Scrimgeour and W. A. Tewksbury, for appellant.

W. C. Connell, for appellees.

1. ESTATES:

res adjudicata: fraud and mistake.

SEEVERS, CH. J.-There is no doubt an action could have been brought by the administrator to set aside the fraudulent sales and subject the property to the payment settlement of: of the debts, and it has been held a creditor may bring such an action previous to the discharge of the administrator, making the latter and fraudulent grantees parties. Hagan v. Walker et al., 14 How., 29. The question before us is different. The estate had been settled and the administrator discharged. “This is an adjudication binding on the parties in interest." Kows v. Mowery, 57 Iowa, 20. Such adjudication can only be set aside for fraud or mistake within the time prescribed by statute. Code, §§ 2474-2475. Neither fraud or mistake is alleged. At most, simple neglect to bring an action is charged against the administrator. The plaintiff had full knowledge of such neglect, and failed to avail himself of remedies which were plain and undoubted to protect himself. There are cogent reasons why claims against an estate should be enforced in the manner prescribed by statute. In Bridgman & Co. v. Miller, 50 Iowa, 392, it is said: "We know of no rule of law which will permit a creditor to pursue any other course than that prescribed by statute for the enforcement of his claim against the property of his deceased debtor." But it may possibly be said the property in question did not belong to the estate. If it did not it should not be charged with the payment of the indebtedness. The truth is the property did belong to the estate, and could have been reached prior to the discharge of the administrator, by a proper action, as readily

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