Dessaint v. Foster

Reed, J. The motion to set aside the order allowing plaintiff’s claim was supported by the affidavit of defendant’s attorney, in which he testified that, when the original notice was served on defendant, he requested plaintiff’s attorney to inform the affiant of the filing of the claim; and that said attorney neglected to do that, but called up the claim at a time when neither defendant nor his attorney was in court, and procured its allowance. It is also alleged in the affidavit that plaintiff “ has no claim, in law or equity, against the estate.” It was on the showing contained in that affidavit that the order appealed from was made. It is to be observed that the statement in the affidavit as to what had taken place between defendant and the attorney for plaintiff relates to a matter which, from the nature of the case, could not have been within the personal knowledge of the affiant. As to that matter he testified from information derived, as we suppose, from his client. His testimony on that point is hearsay and incompetent, and it appears to us that nothing is shown by his testimony which warranted the district court in setting aside the order. It is true that the order allowing the claim is not technically a judgment, (Foteaux v. Lepage, 6 Iowa, 123; Voorhies v. Eubank, Id., 274; Little v. Sinnett, 7 Id., 324; Smith v. Shawhan, 37 Id., 533,) and we do not hold that the application for its vacation is governed by the rules which apply when an ordinary judgment is sought to be set aside. But it is an adjudication; it is a determination by the court, after hearing the evidence, that plaintiff’s claim is just and valid, ( Voorhies v. Eubank, supra,) and it ought not to be disturbed without some showing that the administrator has a valid defense against it. The statement [641] that plaintiff bas no claim against the estate is but the statement of a conclusion, without any showing of facts to support it. In our opinion, it is not sufficient. What we hold is that, while the court would be warranted in setting aside the allowance of a claim which was shown to be unjust or invalid, even where the administrator had negligently permitted the order of allowance to be made, it ought not to disturb an allowance once made, without a showing ®f the existence of a meritorious defense. REVERSED.