2 Ala. 269 | Ala. | 1841
— First: In Crawford vs. the ex’rs. of Simonton, 7 Porter’s rep. 110, it was decided, that wliere a party voluntarily permits an issue on the plea of nul tiel record to be tried by a jury, instead of the Court, he cannot avail himself of the irregularity on error. In the case before us, no objection was made to. the mode of trial, and we must consequently infer, that it was not objected to by the plaintiff in error. The case cited, is then decisive of the first point made.
Second : No objection seems to have been taken to the regularity of the authentication of the proceedings and judgment offered as evidence in the Circuit Court; but the only question there raised was, whether it was necessary to she\v by evidence, other than that which the exemplification itself afforded, that the Court in Georgia which rendered the judgment, was a court of record. The transcript being attested by the clerk, and certified by the presiding justice, was prima facie evidence sufficient to authorise the inference, that the Court was a court of record; especially when the form of the proceedings was such as would not have been had in a court whose proceedings and judgments were not dignified as records. If it could have aided the defence of the plaintiff, he might have shewn what the law of Georgia was touching the character of the Court.
The declaration is in the usual form on the exemplification of a judgment rendered in a court of record of a sister State ; the plea denied the existence of such a record as the declaration described The issue then to be tried, was whether the cause of action as alledged, really existed. The affirmative of this question was sufficiently sustained by the production of such a judgment as was declared on, certified and attested in' compliance with the act of Congress of the 26th of May, 1790. The regularity of the certificate of the clerk and attestation of the presiding justice, were not objected to ; but the only question raised being that we have examined, it follows that the judgment of the Circuit Court must be affirmed.