Gatling v. Robbins

8 Ind. 184 | Ind. | 1856

Gookins, J.

This suit was brought on the record of a judgment rendered in the Commercial Court of Cincinnati, Ohio, in favor of Robbins against Gatling. The answer denies the recovery of the judgment and the existence of the record. The plaintiff had judgment below, from which the defendant appeals.

The defendant objected to the admissibility of a transcript of the record offered in evidence, because it was not properly certified. It was certified by the clerk of the Court of Common Pleas of Hamilton county, Ohio, and under the seal of that Court. The certificate states it to be a true transcript of the récord of the ings'and judgment had in the Commercial Court of Cincinnati, as the same appear of record among the records of said Court, thpn in the office of the certifying clerk, which said records, with the files of said Commercial Court, were transferred and delivered to the said Court of Common Pleas, in pursuance of the constitution, and the act entitled an act to provide for the transfer of the business of the Superior and Commercial Courts of Cincinnati, which passed and took effect January 27, 1853. To this is added a certificate of a judge of the Court of Common Pleas of Hamilton county, certifying in the usual form to the-official character of the clerk of that Court, that his attestation is in due form of law, and by the proper officer.

The statute of this State is similar to the act of Congress on the subject of the authentication of records from other States. It provides that the records and judicial proceedings of the several courts of record of or within the United States, or the territories thereof, shall be admitted in the courts within this State, as evidence, by attestation or certificate of the clerk or prothonotary, and the seal of the court annexed, together with the seal [certificate] of the chief justice, or one or more of the judges, or the presiding magistrate of such court, that the person who signed the attestation or certificate was at the time of subscribing it, the clerk or prothonotary of the court, and that the attestation is in due form of law; and the records and judicial proceedings authenticated as aforesaid, shall have full faith and credit given to them in any court within this State, as, by law or usage, they have in the courts whence taken. 2 R. S. p. 93, s. 286.

The defendant’s position is, that the clerk of the Court of Common Pleas of Hamilton county had no power to certify that by the constitution and laws of Ohio he was made the depository- of the records of the Commercial Court, with authority to certify transcripts of its proceedings; that this could only he shown by producing the constitution and laws of Ohio conferring the power in question, which was not done. This position, we think, cannot be sustained. The certificate of the judge is at leass prima facie, if not conclusive, evidence that the clerk’s certificate is in due form of law, and by the proper officer. It supplies to us the place of the laws of Ohio. It proves to us what faith and credit would be given to the certificate and record if offered in evidence in some other Court in Ohio, and the statute provides that when so certified they shall be entitled to equal credit here.

J. A. Liston and J. W. Gordon, for the appellant ⁽¹⁾. J. Caven, for the appellee ⁽²⁾.

Another objection taken to the evidence is, that the defendant did not appear to the action in the Commercial Court of Cincinnati. The proceedings are against Richard J. Gatling, except that the plea is in the name of Robert J. Gatling. The record shows that the plea was filed in a cause against Richard J. Gatling, and the judgment was against him; hence the presumption is that it was but a clerical error. But whether it was or not, no such objection was pointed out in the Court below. The defendant had not then discovered, probably, that his attorneys had mistaken his name in pleading. As the error was not relied on below, it is not available here.

Per Curiam.

The judgment is affirmed with 5 per cent, damages and costs.