178 Iowa 636 | Iowa | 1916
“It does not follow, because the books were in another state, their production at the trial could not have been secured. ’
Manifestly, the fact that the signed application was beyond the state boundaries would not preclude the introduction of the duplicate copy, and this is all that is held, though the language of the opinion might, but for the recital of facts, be susceptible of broader construction. The authorities bearing on the question seem to be in hopeless conflict. On the
The Supreme Court of the United States declared, speaking through Swayne, J., in Burton v. Driggs, 20 Wall. (U. S.) 125 (22 L. Ed. 299):
“It is well settled that, if books or papers necessary as evidence in a court in one state be in the possession of a person living in another state, secondary evidence, without further showing, may be given to prove the contents of such papers, and notice to produce them is unnecessary.”
A deposition of a witness in another state had been shown to have been lost, and a'copy made by the clerk of court was adjudged rightly received in evidence. The witness, not the deposition, was beyond the court’s jurisdiction, and the above excerpt, from the opinion was dictum. Moreover, that court, had previously ruled, in Turner v. Yates, 16 Howard (U. S.) 14, that:
“If the paper was in the hands of consignees in London, secondary evidence was not admissible. . . . If as parties, they were entitled to notice to produce the paper; if as third persons, their depositions should have been taken, or some proper attempt made to obtain it.”
The rule as indicated in this statement obtains in many jurisdictions. Shaw v. Mason, 10 Kans. 184; McDonald v. Erbes, 231 Ill. 295 (83 N. E. 162); Wiseman v. Northern Pac. R. Co., 20 Ore. 425 (23 Am. St. 136); Kirchner v. Laughlin, 6 N. M. 300 (28 Pac. 505); Justice v. Luther, 94 N. C. 793; Pringey v. Guss, 16 Okla. 82 (86 Pac. 292); Bruger v. Princeton & St. M. M. F. Ins. Co., 129 Wis. 281 (109 N. W. 95);
Secondary evidence of the contents of a writing is received as the best evidence attainable only upon showing that the original writing cannot be produced by the party offering such evidence -within a reasonable time, by the exercise of reasonable diligence. Precisely what must be done to constitute such diligence depends on the facts of each case. There is no criterion by which to measure the necessary effort; but, in all eases, the party asserting the loss or destruction of the paper or document is required to show:
“That he has in good faith exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him.” 1 Greenleaf, Ev., Section 558.
It is not sufficient that the witness assert that it is lost; he must search for it in every place where there is reasonable probability that it may be found. To exact any less diligence would impair the advantage of reducing communications or -agreements to writing. This much is exacted from the party tendei’ing evidence of the contents, not because of the power of the court to order the production of the writing found, but to make sure that the court has the best evidence attainable by the party offering it, on which to base its judgment.
Harvester Co. v. Elfstrom (Minn.), 112 N. W. 252; State v. Albertalli (N. J.), 73 Atl. 128. But on motion for new trial, it appeared by affidavit of Henton that, several .months prior to the trial, the original letter had been delivered to defendant, and had not been returned. He must have had it, then, at the time of the trial, and, if the copy adduced was defective in any manner, might have corrected it by producing the original. The ruling then, though erroneous, was without prejudice.
“I am inclosing a letter from Mr. Carter, which is the first communication I received from him. , I suppose this letter contains the information you desire, as he states in the letter that it was through your courtesy he wrote me in regard to this trade. ’ ’
Asked what it was, and answered:
“That is the answer to this letter that I had written him. ’ ’
When offered in evidence, it was objected to as “incompetent, irrelevant and self-serving.” The letter was relevant, and not open to the objection as self-serving, for that it tended
Discovering no prejudicial error, the judgment is— Affirmed.