3 Wash. 166 | Wash. | 1891
The opinion of the court was delivered by
This proceeding was instituted in the superior court of King county, this state, by the respondent, Millie Kentzler, who, in August, 1890, filed against the appellant, Joseph Kentzler, her petition for a writ of habeas corpus, to obtain possession of two minor children. The parties had been married at Miles City, Montana, on the 10th day of July, 1883. The aforesaid Millie Kentzler claimed, and grounded her petition upon that claim, to have obtained a decree of divorce from said Joseph Kentzler, in the courts of Montana, at Helena, on the 27th day of December, 1889, and that by said decree the custody of the children of the marriage had been awarded to her, and that the appellant had wrongfully kidnaped and carried away two of the children. The appellant, in answer, denied all knowledge of any divorce having been obtained, except as he had been informed by Millie Kentzler herself; alleged that he had received no notice of the pendency of any such proceeding, and had not been present
On these issues the parties went to trial. The only evidence offered was the testimoney of the respective parties, and some letters written by the respondent to the appellant. In the course of the respondent’s testimony she testified that she had lost the certified copy of the decree of divorce, which she had obtained, and after diligent search had been unable to find it. On this basis parol evidence was offered to prove the decree. Counsel for the appellant objected to the admission of such testimony as being incompetent, and that the only evidence admissible to prove such judgment was a certified copy of the record. The court overruled this objection, and in overruling it said:
“ I shall admit the evidence, and I will allow the defense to offer evidence showing what is best for the present welfare of the children, and I will allow evidence to be offered independent of the record of the Montana court.”
"Whereupon counsel for respondent objected to the introduction of any evidence other than that which related to the record of the Montana court, which was also overruled. He now claims that the court was justified in awarding the children to the custody of the respondent upon the testimony introduced as to the fitness of the parties. It seems, however, that the finding was not based upon this testimony, from what the court said, which appears in the statement of facts, and is as follows:
“ The court: There are two facts in this case which seem to me to be established without doubt; one is that*169 the petitioner, Mrs. Kentzler, was divorced from Joseph Kentzler, in Montana, in December last, and awarded the custody of the children; the other that Joseph Kentzler went to Montana and took these children away from their mother without any right and brought them to Washington. Upon all the other points there is a direct conflict of testimony, and I am unable to tell which one to believe; I therefore order that these children, Charles and Laura Kentzler, be returned to the custody of their mother, Millie Kentzler. This case should be determined in Montana.”
The objection made to the proof offered of the judgment of the Montana court ought to have been sustained. There was no claim or showing that the record itself was lost or destroyed so that a certified copy thereof could not be obtained, and under such circumstances the mere loss of the certified copy which the respondent had obtained would not warrant the admission of the proof introduced. Sec. 905 of the Revised Statutes has provided a way in which judgments rendered by courts of record in one state may be proved in another. Sec. 430 of our .1881 code has dispensed with the requirement that the judge shall certify the attestation to be in due form, but it does not provide for proof in any other manner than by a certified copy. In the absence of a statute, an existing record of a judgment of a court of record of another state could only be proved by the production of the record itself, or by a copy properly authenticated. See 1 Greenleaf on Evidence (14th ed.), §§ 501 and 505. This is the rule also as to the proof of judgments of inferior courts where the course is to record them, and this will be presumed until the contrary is shown; the record or an authenticated copy is the only competent evidence. Sec. 513; Owings v. Hull, 9 Pet. 607; Freeman on Judgments, § 577.
But it appears from the testimony introduced relating to the fitness of the respective parties as to having the care and custody of the children, that the appellant is the more
Anders, O. X, and Stiles, Hoyt and Dunbar, JX, concur.