
    Stiles & Winter v. The Estate of Jesse Botkin, dec’d
    1. New trial: conclusiveness or record. Where it appears from the record in a case that a motion for a new trial (the ruling upon which is complained of) was not made within three days from the rendition of the verdict, as prescribed by section 3114 of the Revision, such recital of the record is conclusive on appeal. If erroneous it should have been corrected by proper proceeding in the court below.
    2. Evidence: administrator. In a proceeding to enforce a claim against an estate, the adminstratrir is a competent witness on behalf of the estate to show that a settlement of the claim was made between the claimant and the decedent prior to the death of the latter. Such witness does not come within the inhibition contained in section 3982 of the Revision.
    
      Appeal from Washington Circuit Court.
    
    Saturday, October 22.
    Ón the 4th day of August, 1870, the plaintiffs filed in the Washington circuit court a claim against the estate of Jesse Botkin, deceased, amounting to $82.00.
    On the 15th day of August the cause was tried by the court. At the trial Stiles & Winter introduced evidence to show that they had built a house for deceased and performed services for which their charges were made.
    Defendant then introduced Alice Botkin, widow of the deceased, and administratrix of the estate, who testified that she was present when full settlement was made of the matter in controversy, between one of the claimants and the deceased, and the amount found due was paid.
    The claim of plaintiffs being disallowed, they filed their motion for a new trial, which the court sustained upon the ground that the testimony of the administratrix was improperly admitted.
    From the order of the court, granting a new trial, the defendant appeals.
    
      
      H. & W. Scofield for the appellant.
    
      Lewis c& Phelps, for the appellees.
   Day, J.

I. From appellant’s abstract of the record, it appears that the canse was tried and judgment rendered on the 15th day of August, and that the motion for new trial was made on the 19th. It is claimed tnat the court erred in ordering a new trial upon an application made more than three days after the verdict ^ or decision was rendered. Bev. § 3114.

Appellee, while admitting the correctness of the abstract, as shown by the record, claims that there is a mistake in the record itself, and that the cause was tried on the 15th, judgment entered on the 18th, and motion for new trial made on the 19th of August. It is not insisted that, under the provisions of section 3114 of the Bévisión, this motion for new trial could properly be entertained after the period of three days from the rendition of judgment. The record must here be taken as conclusive of the facts which it recites. If erroneous in any respect, it should have been corrected by proper proceedings in the court below. But as the remaining error assigned, in the view which we adopt, disposes of the case upon its merits, we forbear any further consideration of this question.

II. It is next claimed that Alice Botkin was a competent witness, and that the court erred in granting a new trial upon the ground of her admission. Sections ggyg an(J gggg Qf ReTisi0n render all persons competent to testify, without regard to them interest in the result of the suit. Upon this general rule of the Bevision, certain exceptions are ingrafted by the sections which follow. If this witness is incompetent, her incompetency results from section 3982, which provides that no person shall be allowed to testify under the provision of section 3980, where the adverse party is the executor of a deceased person, when the facts to be proved transpired before the death of such deceased person, and nothing in such section contained shall, in any manner, affect the laws now existing in relation to the settlement of estates of deceased persons, infants or persons of unsound mind. Two classes of cases are provided for in this section: first, those in which the adverse party is the executor of a deceased person; second, those affecting the settlement of estates of deceased persons. The exclusion of the administratrix cannot be based upon the provision of this section. She is not offered in a suit in which the adverse party is the executor of a deceased person. She is offered in behalf of the estate, and does not fall within the inhibition of the former part of section 3982. Bradley v. Kavanagh 12 Iowa, 273. It remains to be seen whether she falls within the exceptions contained in the remaining portion of the section before named. It cannot be maintained that every action against an executor involves, in the meaning of section 3982, a question affecting the settlement of the estate of the decedent. If so, every thing contained in the former part of the section is included in the latter, and the former provision becomes mere tautology.

In the case of Bradley v. Kavanagh, which was an action prosecuted by the widow and administratrix of the deceased, for the recovery of a horse bought by the deceased in his life-time, the administratrix was held to be a competent witness. It is not possible, in principle, to distinguish that case from this. In that ease, the horse, if recovered, became assets in the hands of the administratrix, subject to distribution after the satisfaction of the debts of the deceased. In this, the defeating of the plaintiffs’ claim leaves a fond already in the hands of the administratrix the subject of distribution in the same manner. Regarding the question presented in this case as definitely settled in Bradley v. Kavanagh, we consider any further discussion of it unnecessary.

Reversed.  