Dickinson's Executors v. Clarke

5 W. Va. 280 | W. Va. | 1872

Bericshire, P.

Three objections are urged against the judgment complained of.

The first is that the court erred in admitting the copy of the power of attorney from John J. Dickinson to John L. Vance, mentioned in the appellant’s first bill of exceptions. This copy was filed as an exhibit with the deposition of A. Vance, taken by consent, previous to the trial. There was no evidence to show that the original was lost or could not be obtained or produced on the trial; but on the contrary, it appears from said deposition that it was then in the possession of the witness, who declined to file it, alleging that it was the private paper of Colonel John L. Vance. Without such proof of the loss, or inability to produce the original, no copy of it could be admissible, unless it was such a copy as is provided for by the 20th section of chapter 180 of the Code of W. Va., p. 618. But the copy in question does not appear to have ever been acknowledged for recordation, nor is it properly authenticated, as required by the section just cited, and was not therefore admissible evidence against the defendants. Tt was suggested in the argument here, that the defendants had waived their objection to the introduction of the copy, by failing to except to the filing of it at the time the deposition, with which it was filed, was taken; or, at least, for not taking and noting their exceptions before the trial of the cause. But the objections to the testimony that might be thus waived are such only as relate to the regularity of the taking of it, and not to such as refer to its competency. Fant vs. Miller & Mayhew, 17 Grat., 187; White vs. Heavner, infra.

The second error insisted on by the appellant is the refusal of the court to give the instruction referred to in their second bill of exceptions.

It appears that after the plaintiffs had introduced a copy of tbo enrollment of the steamer “Mollie Norton” (in controversy in this suit), in the custom house at Cincinnati, duly authenticated, the defendants asked the court to instruct the jury that “the certificate of enrollment put in evidence in this cause is admissible to prove that the ‘Mollie Norton’ was legally enrolled in the custom house, and of the names of the persons enrolled as owners. But that the recital, in the certificate of enrollment, of the contents of the affidavit of her captain, S. C. Farley, cannot be considered as evidence by the jury to prove that John J. Dickinson was at any time a part owner of said steamer.” The affidavit of said Farley (referred to) sets forth that he, John J. Dickinson and three ■others, named therein, each owned one-fifth of the said steamer at the time of such enrollment.

It was insisted by the counsel for the appellees, that this was competent evidence against the defendants in this action, as the executors of John J. Dickinson, as tending to establish the alleged joint purchase of said Dickinson from the appel-lees, of the said steamer, and the consequent liability of his personal representatives for the unpaid purchase money. As n general rule, it seems to be wel-1 settled that the admissions of one of the parties to the record, whether as plaintiff'or defendant, are competent evidence against all other parties to the suit, who have a joint interest in the matter of it, with the party making the admissions. But whether the declarations and admissions of a person who is not a party to the suit, though jointly interested in the subject matter of the suit with the parties to the record, or some of them, does not appear to be settled, and I cannot find that such admissions have, in any instance, been allowed in evidence against the parties to the record. 1 Greenleaf, Ev. S. 172, 173, 174, and authorities referred to in notes.

However the latter proposition may be, we think it very clear that the admissions of one party, whether he be a party to the record or not, is not competent to establish the fact of such joint interest with other parties to the suit. That fact must first be made out by independent testimony; and until that is done, such admissions could only be evidence against th e party making them.

The other testimony in the cause, though tending to prove the joint interest of John J. Dickinson, deceased, with the said Farley, in the matter in controversy, is not, in my judgment, sufficient to let in his admissions contained in said affidavit, even if he were a party defendant in this suit.

I think, therefore, the court committed an error in overruling the defendant’s said instruction.

The third objection to the judgment is, that the court erred in overruling the appellant’s motion for a new trial.

As the case has to go back to the circuit court for a new trial, and the same question will not necessarily arise again,, we deem it unnecessary to consider this objection.

I think the case should be reversed, with costs, and remanded to the circuit court for further proceedings.

The other judges concurred.

JUDGMENT REVERSED.