Churchill v. Carter

Headnote

Commission to tcúce testimony — issued by stipulation — no seal necessary where the attorneys waive it.

Appeal from a judgment in favor of the plaintiff, entered in Genesee county upon the report of a referee.

The action involved the examination of an account between the parties, arising from money loaned by the intestate to the defendant, and services rendered by the latter to the former.

After examining other questions, the court at General Term said: “ The appellant objected to testimony of Chester R. Churchill and Almond S. Churchill, taken on commission, upon the ground that the commission was not sealed, or allowed by the judge, or signed by the clerk. In general, it is necessary that a commission to take.testimony should bear the seal of the court from which it issues. By the judiciary act of 1847 (chapt. 280, § 57), it is declared that no process, except such as shall be issued by the special order of the court, shall bo deemed either void or voidable for want of a seal when it shall be signed by the attorney of the party issuing it. If the commission in this case had issued by the special order of the court, the absence of the seal would have rendered the commission void, or at least voidable. (Ford v. Williams, 24 N. Y., 366 .) This commission, however, was issued without any special order of the court, but by virtue of a stipulation between the attorneys of the parties, which stipulation is annexed to the commission and signed bv the attorneys of the parties, the appellant states that the stipulation was merely ‘ that a commission issue.’ The stipulation goes farther; it is ‘ that the

annexed commission do issue/ etc. There is ho' doubt- but: the attorneys of the parties may waive the fixing of the- seal, and we think the stipulation that ‘ the annexed commision do issue/ annexed to an unsealed commission, was such a waiver.”