62 Ark. 203 | Ark. | 1896
(after stating the facts). The exception of the appellant to the court’s ruling permitting the original mortgage from Ward to Melindy to be read in evidence was too general and indefinite. As was said in Vaughan v. The State, “appellant should have been ingenuous and fair to the court, ‘laying his finger’ upon the particular point in the court below which he is insisting, upon here.” 58 Ark. 353; see also Railway Co. v. Murphy, 60 Ark. 333; Elliott on Appellate Proceedings, 726.
It was not' competent to prove by Brown, the register of deeds, the records of his office. They might have been shown by a certified copy thereof authenticated as required by the laws of congress, or by an examined copy duly made and sworn to by any competent witness. The best evidence must be resorted to, and secondary evidence is not admissible, until it is shown that the primary evidence cannot be obtained.
The record relating to this mortgage should have been authenticated as required by section 906 of the Revised Statutes of the United States (which is familiar to the bar) before it could be read in evidence, and not having been so authenticated, and there being no examined copy made and sworn to as required by law, it was error to admit it, to show a lien in favor of the plaintiffs upon, or a right to possession of, the property in controversy by the plaintiff, under the laws of Kansas.
There being no showing or mention in the bill of exceptions that the duly certified copy sent up in response to the writ of certiorari was filed or read as evidence in the case, we cannot find that it was read as evidence on the trial, as we must look alone to the bill of exceptions for the evidence in the case. If it had mentioned that this authenticated copy was read in evidence, the fact that it had been left out would make no difference, after it had been supplied by certiorari. If it was read as evidence in the trial of the case, the bill of exceptions might have been amended to show that fact.
We find no error in the instructions of the court.
There was no evidence to support the findings below. Wherefore the judgment is reversed, and the cause is remanded for a new trial.
