Bohart v. Hull

2 Indian Terr. 45 | Ct. App. Ind. Terr. | 1898

Springer, C. J.

The appellant assigns but two errors to which attention is required.

The first assignment of error is on account of overruling the motion to make the complaint more definite and certain. The demurrer to the complaint was properly overruled, in view of the court’s opinion as to the motion to make the complaint more definite and certain. The suit was on a redelivery bond, which was destroyed by a fire which burned up the court house at Ardmore, April 19, 1895. Counsel for appellant contend that the court should have required appellee to. file a copy of the bond sued on. He could not do this on account of the destruction of the instrument by fire. But it was further contended that it was the duty of appellee to institute proceedings for restoring the records of the court as provided in sections 5347 to 5357 of Mansfield’s Digest. These sections were not put in force by the act of May 2, 1890, but appellant insists that they were put in force by the act of March 1, 1889, § 6. The proviso to the last named act is to the effect ‘ ‘ that the practice, pleading and forms of proceeding in civil cases shall conform, as near as may be, to the practice, pleadings and forms of proceeding existing at the time in like cases in the courts of record of the state of Arkansas.” While this provision put in force in the Indian Territory the action of ejectment, as decided by this court in the case of Wilson vs Owens, 1 Ind. Ter. 163, we are of the opinion that it did not put in force in the territory sections 5347 to 5357 of Mansfield’s Digest, for the reason that the sections mentioned do not relate to “the practice, pleading and forms of proceedings in civil actions, ” but they point out a method by which lost or destroyed records may be restored. But, if these sections were in force in the Indian Territory, they would not prevent the courts from proving lost records by the other well-known methods. The proviso to section 5356 is to the effect that nothing in the sections indicated shall be so construed as to prevent any of the lost or destroyed records therein provided for to be reinstated and established by any other mode known or recognized by existing law. Secondary evidence is admissible to establish the contents of documents which have been lost or destroyed. Steph. Dig, Ev. p. 136. It was admitted in the case at bar that the bond sued on was destroyed by the Ardmore fire, which destroyed the court house.

Restoring lost Record. Judicial notice of proceedings of court at other places.

The third assignment of error is as follows : “That the court erred in admitting in evidence on behalf of plaintiff a copy of the marshal’s docket of another court, showing indorsements on original writ, over the objection of defendant, while the witness E. C. Carter was on the witness stand, which said copy of the docket was not certified or authenticated as provided by law.” The marshal of the court at Ardmore is the marshal of the court at Purcell. There is but one court, and that is held at different places in the same district. The court when held at one place will take judicial cognizance of the proceedings of the court wherever held in the district. The jurisdiction of the court is the same at all places of holding court. Graham vs Stowe, 1 Ind. Ter. 405. The authentication of records, as provided for in sections 905 and 906 of the Revised Statutes of the United States, only applies to the records of “other courts.” The sections do not apply to the records of the United States Courts in the Indian Territory, when used in the judicial district at other places of holding court in the same district. The case at bar was begun at Ardmore, and afterwards transferred for trial to Purcell. The record does not set forth the evidence in the case. Failing to do so, this court will assume that the evidence submitted to the jury was sufficient to support the verdict. Hall vs Needles, 1 Ind. Ter. 146. There is no reversible error in the record. The judgment of the court below is affirmed.

Clayton and Townsend, JJ., concur.