Winder v. Hendricks

Myrick, J.: This is an action brought against an executor to recover the amount of a rejected claim. The affidavit to this claim was sworn to by the claimant in this State before a United States Court Commissioner; and the objection is made, that such commissioner is not an officer authorized to administer oaths within the meaning and intent of § 1494 of the Code of Civil Procedure.

According to § 1494 of the Code of Civil Procedure, the [465]oath to a claim made against the estate of a deceased person “ may be taken before any officer authorized to administer oaths.” By reference to the following sections, it will be seen what officers are by the statutes of this State authorized to administer oaths, viz.: §§ 179, 259,«2012, 2093 of the Code of Civil Procedure, §§ 1028, 4118, 4103 of the Political Code. In these sections, no reference is made to any officer other than to State, county, and township officers of this State. It is argued, that § 1028 of the Political Code, which provides, that “ every executive and judical officer may administer and certify oaths,” and § 2093, which provides, that “ every officer authorized to take testimony or decide upon evidence,” authorize every officer who by the Federal statutes may exercise executive or judicial functions, or may take testimony or decide upon evidence to administer oaths in proceedings in the local affairs of this State. We think, however, that such is not the proper construction to be placed upon those sections. We think that those sections, and § 1494 of the Code of Civil Procedure, are to be considered in connection with the other sections above cited, and those other sections are to be held as determining (in the absence of other statutes upon the subject) who are the officers referred to as being authorized to administer oaths. As -well might it be said, that, because a commissioner of another State residing in this State is authorized by the laws of that State to administer oaths to be used in the State for, which he is commissioner, lie is, by §§ 1494 and 2093 of the Code of Civil Procedure, authorized to administer oaths to be used in this State.

Judgment reversed, and cause remanded, with instructions to sustain the demurrer to the complaint.

Eoss, J., McKinstrt, J., and Thornton, J., concurred.