68 Ala. 356 | Ala. | 1880
The provisions in tbe city charter of Selma, providing for the contest of municipal elections, are very meagre.—See Acts 1874-5, pp. 362-3. Section 16 provides, that such contest shall be heard before the judge of the Circuit Court of Dallas county, either in vacation or term time. Section 18 declares, “that the party contesting shall file his application, and give notice of such contest to the judge of said Circuit Court, and the person or persons whose election is so contested, within fifteen days next succeeding said election.” Section 19 provides the manner of taking testimony, and section 20 is as follows : “After the testimony on both sides is completed, the judge trying the cause may examine the poll list and ballots, and pronounce judgment in the case according to the facts.” It will be observed, that these sections make no provision for the deposit of the papers, after the trial is had, or for making any. final record of the suit. In analogy to other proceedings, we think it eminently proper such papers should be deposited with the clerk for safe keeping ; but they do not become.records, of which the clerk can certify, and by certifying, authenticate a copy. They are deposited with him simply for safe custody. A certified copy of them would not have been evidence.
In 1 Greenl. Ev. § 501 it is said: “As to the proofs of records, this is done either by the production of the records, without more, or by a copy.” In 2 Phil. Ev.—Cow. & Hill’s and Edwards’ Notes, 343,—the principle is thus stated: “Where, indeed, the existence of the record is the very point in issue, as upon an issue joined on the plea of nul tiel record, and the record belongs to the same court wherein issue is joined, the record itself must be actually produced.” It is said in this case, however, that the record, or roll as it may be called, was not offered in the same court. These precise questions were urged when this case was before us at a former term—63 Ala. 432—and we then held the evidence was properly admitted, and that the judgment pronounced by the circuit judge on the trial of the contested election established the right of the party to whom the office was adjudged. We have perceived no ground for changing our opinion, and we will offer no argument in support of it. On the admissibility of'the evidence offered, see Burk v. Tregg, 2 Wash. (Va.) 276 (215); Anderson v. Dudley, 5 Call. 529; Green v. Ovington, 16 Johns. 55; Lansing v. Russell, 3 Barb. Ch. 325; Patton v. Miller, 13 Seg. & R. 254; Eisenhart v. Slaymaker, 14 Ib. 153; Adams v. Betz, 1 Watts, 425; The King v. Hopper, 3 Price, 495.
Affirmed