Cooper v. Armstrong

4 Kan. 30 | Kan. | 1865

By the Court,

Safford, J.

The foregoing testimony comprises all that was before the court touching the matter of the statement sought to be introduced. The defendant objected to the said statement being received in evidence, and the court rejected it, to which ruling the defendant excepted. We think that the court was right, admitting for the sake of argument, that the book in which the statement was to be found was of the class of public writings which are denominated, in law, official registers. It follows that, if produced, it would have been good evidence, and any official statement therein contained might have been read; but in the absence of the book itself, the contents might have been proved by an immediate copy, duly verified. See 1 Gfreenleaf Ev., §484, where this language is held: “In short, the rule may be considered settled, that every document which there would be an inconvenience in removing, and which a party has a right to inspect, may be proved by a duly authenticated copybut such copy must be an examined copy, duly made, and sworn to by a competent witness.

• The document offered in evidence, hy the plaintiff in this case, was not such as would come within the meaning of the descriptions here used, nor would the testimony of the witness help the matter materially, since he seems to be so uncertain about the copy being a true one. His statement is that he made it, and that it was a copy from the books of the Wyandotte Indian Council, or was intended as such, as near as I can remember. We think that such testimony is much too uncertain to amount to an authentication of the copy within the meaning of the law. But it may be observed that the statement bearing upon its face the proof that it is an incorrect one — and if incorrect in one particular, may it not be in others ? — but whether the fault is in the book from which it purports to be taken, or elsewhere, does not appear, but it is claimed that the document should have been admitted in evidence without other authentication than that made by the certificate of the clerk. This cannot be true. If the book in which the statement was entered was a public document, the evidence shows that the clerk was not the custodian of it. Nor does the testimony show that he was a public officer. He himself states that the books were generally in the hands of the council, and there is nothing shown to the contrary. The council, then, were the keepers of the books, .and if the copy could be authenticated in the way claimed, such authentication' must come from them. It is further claimed that even if the document or copy in question were rejected, there was still sufficient evidence to justify a recovery, and judgment in favor of the plaintiff.

We cannot consider this question, inasmuch as all of the evidence before the court below is not here; at least, the record does not purport to present it.

Other points are presented in the "briefs, hut we do not deem it necessary to discuss them, and especially since they could not operate in any such manner as to change the result.

The judgment of the district court affirmed.

All the justices concurring.