26 Kan. 553 | Kan. | 1881
The opinion of the court was delivered by
This action was originally commenced in the probate court of Cowley county, by William Case against J. L. Huey, administrator of the estate of Albert Chamberlain, deceased, on a judgment rendered by a justice of the peace in Wisconsin in favor of the plaintiff, William Case, and against the said Albert Chamberlain, in his lifetime. While the action was pending in the probate court, the plaintiff gave notice to the administrator, under §§346, 347 and 352 of the civil code, that he would take depositions of sundry witnesses in the state of Wisconsin, and depositions were taken in accordance with the notice, but without the consent and in the absence of the administrator. On the hearing of the case in the probate court, the probate court decided against the plaintiff and in favor of the defendant, and the plaintiff appealed to the district court. In the district court the defendant moved to suppress the depositions upon various grounds, among which was that the administrator never gave his consent in writing that such depositions should be taken. The district court sustained the motion, and suppressed the depositions. Afterward the case was tried by the court without a jury, and on the trial the plaintiff offered to introduce, among other evidence, a certified transcript of the iudgment rendered by the justice of the peace in Wisconsin, but the defendant objected upon the ground that the same was incompetent, and the court sustained the objection, and the evidence was excluded. Afterward judgment was rendered in the district court in favor of the defendant, and against the plaintiff; and the plaintiff now brings the case to this court.
I. We think the court below ruled correctly in suppressing said depositions; for they were taken while the case was pending in the probate court, and not only without the consent of the administrator in writing, but against his consent and in his absence. They were therefore taken without authority of law, and were really no better than ex parte affidavits. The hearing of a case in the probate court is informal and summary, and nothing is allowed to intervene to swell the costs that can conveniently be avoided. Sections 94 and 95 of the executors’ and administrators’ act read as follows:
“Sec. 94. The probate court shall hear and determine all demands in a summary way, without the form of pleading, and shall take the evidence of competent witnesses, or other legal evidence.
“Sec. 95. Any person may take depositions in support of his demand, at his own expense, if he first procure the written consent of the executor or administrator; and such depositions may be taken in the ordinary manner, at such time and place' as may be agreed upon, and read in evidence in support of such demand.”
If the plaintiff can prove his claim in the probate court without the aid of depositions, or if his claim is admitted, he does not need tp take depositions; but if he cannot prove his claim without the aid of depositions, and the administrator will not admit -the claim, nor consent in writing that depositions may be taken, then the plaintiff, after his claim has been disallowed in the probate court, must take an appeal to the district court, where he can take depositions under §§ 346-362 of the civil code. In the present case the depositions were not taken in accordance with law, and therefore it was right that they were suppressed. These depositions were in law merely ex parte affidavits.
II. The plaihtiff claims that the court below erred in excluding the transcript of the judgment rendered by the justice of the peace in Wisconsin, and refusing to permit it to
“And I further certify that said judgment was rendered in accordance with the laws of the state of Wisconsin, and that no part of said judgment has been paid, and that I am the sole custodian of the records of' my office as such justice of the peace. And that I have no official seal and have no clerk, and that this certificate is in due form of law.”
Also attached to said transcript was a certificate of the clerk of the circuit court of Juneau county, Wisconsin, certifying to the official character of the justice, to the genuineness of his signature, and substantially to the same matters set forth in the certificate of the justice, as above quoted, except that he says nothing with respeet-to the payment of the judgment. This certificate of the clerk is attested by the seal of the court. Also attached to said transcript is a certificate of the judge of the circuit court of said Juneau county, certifying to the official character of the clerk, the genuineness of his signature and of the seal, and that the certificate and attestation are in due form and entitled to full faith and credit. Also attached to said transcript is the following certificate of the secretary of state of Wisconsin, attested by the great seal of the state, which certificate reads as follows:
“State op Wisconsin, ss. — I, Hans B. Warner,secretary of state in and for the state of Wisconsin, do hereby certify that Honorable Alva Stewart and E. D.Wightman, whose names are subscribed to the foregoing certificate, were at the date thereof, and are now, respectively the judge and clerk of the circuit court in and for Juneau county, Wisconsin, and that their signatures to said certificate are genuine, and that the seal of said court affixed to the certificate of said clerk is the genuine seal of said court. I further certify that Charles N. Holden, Esq., whose name is subscribed to the first one of the foregoing certificates, and before whom the foregoing judgment was rendered, was at the date of the issuance of the summons in said suit and the rendition of said judgment a justice of the peace in and for said county of Juneau, state of Wisconsin, duly elected and qualified, and was such justice
“In testimony whereof, I have hereunto set my hand and affixed the great seal of the state, at the eapitol, in the city of Madison, this twelfth day of August, A. D. 1880.
[l. s.] Hans B. Warner,
Secretary of State.”
Should this transcript have been admitted in evidence in the district court? That a judgment of a justice of the peace of a sister state is a sufficient foundation upon which to base an action, is so well settled by adjudications and by general consent, that we do not think that the proposition requires any discussion or any citation of authority to uphold it, but the defendant claims that the judgment rendered in Wisconsin has never been revived as against the administrator, and therefore that it is wholly inoperative and void as a cause of action. This cannot be true. It is not necessary to revive a judgment in such cases in order to found an action upon it. It would not be necessary, even if the judgment were rendered by a justice of the peace in Kansas. (Scroggs v. Tutt, 23 Kas. 181, 189, 190.) It follows, therefore, that the claim of the plaintiff is a valid one, provided it is true, and that it presents a sufficient foundation upon which to base all the proceedings had in both the probate court and in the district court. The only question then to be considered by this court
If judgments of justices of the peace are included within said act of congress, then the judgment of the justice of the peace of Wisconsin, offered in evidence in this case, was undoubtedly sufficiently authenticated, and was entitled to be introduced in evidence. We shall not express any opinion upon this question, however, as we think the transcript should have been admitted in evidence under our own statutes. Section 377 of the civil code provides that “copies of proceedings before justices of the peace, certified by the justice before whom the. proceedings are had, shall be evidence of such proceedings,” but we think this section has application only to domestic judgments — only to judgments rendered in the state of Kansas. There is another section, however, of the civil code which we think applies to this case, and which reads as follows:
“ Sec. 371. Copies of records and proceedings in the courts of a foreign country may be admitted in evidence, upon being authenticated as follows: First, by the official attestation of the clerk or officers in whose custody such records are legally kept; and, second, by the certificate of one of the judges or magistrates of such court that the person so attesting is the
Now if neither the act of congress providing for the authentication of judicial records and proceedings, nor §377 of the civil code, applies to the authentication of records made by justices of the peace in sister states, then § 371 of our civil code must apply; for otherwise we would have no mode of proving records of justices of the peace of sister states, except the old common-law mode; and just what that mode is, is not very well settled or defined. 'We think that said § 371 of the civil code is applicable; that the same person may be the judge and the clerk of the same court, and may certify its proceedings in each capacity, we think has been settled beyond controversy. (Bissell v. Edwards, 5 Day [Conn.], 363-366; The State of Ohio v. Hinchman, 27 Pa. 479; Sally v. Gunter, 13 Rich. [S. C.] 72; Low v. Burrows, 12 Cal. 181, 188; Catlin v. Underhill, 4 McLean, 199.) If the justice of the peace could certify both as j udge and clerk — and we think he could — then his certificate in the present case complies with § 371 of the civil code in every respect; and the certificate of the secretary of state undoubtedly fulfills every requirement of the section.
We think the transcript of said judgment was erroneously excluded; and therefore, for this error, the judgment of the court below will be reversed, and cause remanded for a new trial.
