118 Mich. 379 | Mich. | 1898
The complainant obtained a judgment against William B. Gates in justice’s court for $208.79 damages and $2.30 costs, in the year 1877. Execution was issued, and returned unsatisfied, as appears from the execution. The justice is dead, and after diligent search it was impossible to find his docket, or any paper in the case except the execution and return. The issue of this execution was delayed upon the promise of Gates to sell his wheat and pay the judgment; but, after selling his wheat, he absconded, and has since lived in the State of
Defendants’ brief states that there are two questions in the case:
First, whether either of the defendants is liable to the complainant upon the merits.
Second, whether a bill in chancery will lie to establish a lost judgment of a justice of the peace, rendered in this State, there being no copy or note of the judgment.
We are convinced from the testimony in the case that the complainant had a valid claim against William B. Gates at the time that he left Michigan, but the amount of such claim does not appear. He testified that 40 years
To prove a justice’s judgment, it must be shown that jurisdiction of the defendant was obtained, and that at a proper time a trial was had and a judgment rendered, and its amount. This would be required if the docket were produced, and certainly proof that the lost docket contained as much is requisite. Kenyon v. Baker, 16 Mich. 373 (97 Am. Dec. 158); Hickey v. Hinsdale, 8 Mich. 267 (77 Am. Dec. 450). It is the rule that the loss of the record must first be shown, and 'then the substance of the contents must be established. 1 Whart. Ev. § 139. In section 140 it is said: “But, to authorize memoriter proof of a lost document or record, the witness must have read it, and be able to speak at least to the substance of its contents.” See, also, Coxe v. England, 65 Pa. St. 212. In Com. v. Roark, 8 Cush. 210, it was held that “the contents of a complaint and warrant in a criminal case, lost after being returned into court, may be proved by secondary evidence; and witnesses to prove the contents may state the substance, without giving the exact words.” See, also, Simpson v. Norton, 45 Me. 281; Hall v. City of Manchester, 40 N. H. 410.
It is manifest that anything less than a statement of the contents would be unsafe, and, especially in criminal cases, could not be accepted. It would necessarily involve an opinion of a witness to say that a judgment or warrant — i. e., a valid judgment or warrant — existed, and that would be clearly inadmissible. It has been held that previous talk of the parties as to what they proposed to
the instrument, the party will be admitted to give secondary evidence of its contents.” This court has recognized the rule in Norvell v. McHenry, 1 Mich. 227, which implies the necessity .of proving the steps taken before judgment. See, also, Eslow v. Mitchell, 26 Mich. 500. In re Lambie’s 'Estate, 97 Mich. 55, recognizes the rule, though itself exceptional. In Showier v. Bonander, 80 Mich. 534, Mr. Justice Cahill says, upon behalf of the court: “ When parties rely upon parol evidence to establish the contents of a written agreement, they should be required * * * to show its contents by proof,” etc.; quoting with apparent approval the following: “No vague, uncertain recollection concerning its stipulations ought to supply the place of the written instrument itself. The substance of the agreement ought to be proved satisfactorily;” citing Tayloe v. Riggs, 1 Pet. 600, and Richardson v. Robbins, supra.
It is with reluctance that we reach the conclusion that proof of judgment is wanting, and that we cannot afford the complainant the relief that we would' be glad to give him.
The decree is reversed, and the bill dismissed, with costs of both courts.