Linderman v. Edson

25 Mo. 105 | Mo. | 1857

Scott, Judge)

delivered the opinion of the court.

It is made an objection to the action of the court below that it admitted in evidence the certificate of the justice who returned the transcript to the office of the clerk of the Circuit Court, which does not show how he became possessed of the papers and records of the justice whose proceedings he transcribed and certified. The justice who certified the transcript not -being the same officer before whom the cause was tried and by whom the judgment was entered, it is maintained that it should appear by evidence, or at least that his certificate should show, how he came into the possession of the docket and papers of the other justice. The law points out two modes in which one justice may become possessed of the papers of another. The second section of the act to recover records provides that “ when any civil officer shall die, having any record, books or papers appertaining to any public office or any court, his executor or administrator shall deliver such records, books and papers to his successor.” The 32d and 33d sections of the act to provide for the election of justices of the peace and to prescribe their powers and duties, direct that “ whenever a justice of the peace shall resign, remove out of the township, or be otherwise disqualified, he shall immediately thereafter deliver to the clerk of the county court all dockets, records, books, papers and documents appertaining to his office, or relating to any suit, matter or controversy committed to him in his official capacity; and that the clerk shall immediately thereafter cause the same to be delivered to some justice of the peace of the township in which the vacancy happened.” The law nowhere provides the manner by which it shall appear in. such cases that the certifying justice is the successor of him of whose papers he gives copies. If proof of such fact was required, on what ground would the certificate of the justice be evidence of it ? The objection would require evidence in pais that the papers had been delivered, for the statute does not make the certificate of the justice evidence of such fact. Does not the fact that the justice certifies the papers officially raise a presumption that he is lawfully possessed of them ? Should not that presumption stand until the contrary is made to appear ? In the higher offices, when there is a devolution of their duties from one incumbent to another, it is not necessary to prove that the acting incumbent is a regular successor. That is presumed until the contrary is shown. If, when one as a justice gives a certificate, we presume him, until it otherwise appears, to be duly elected and qualified; why may we not presume, when he officially certifies a paper to be a copy, that the original is lawfully in his possession, when we know by law that it may be with him ? Why not require proof of his qualification and election in the one case as well as of his possession of tlie original in the other ? We are supposing a case in which the principle in relation to officers de facto would not be applicable. We do not consider that the 24th section of the act concerning evidence affects this question. A certified copy of any public paper in the custody of an officer is evidence on general principles. The section must be regarded as cumulative.

We do not see how the objection of a want of an execution on the justice’s judgment can be surmounted. There is nothing in the circumstances of this case which should create an inclination to relax the rules of evidence in order to sus7 tain the title acquired by the sheriff’s sale. That title was acquired after the deed through which the defendants claim. That deed was for a valuable consideration, and, from every thing that appears, with but constructive notice. The plaintiffs and those through whom they claim, taking a title which was to displace others acquired for value, should be prepared to show that the law has been complied with. If we take it that in the justice’s proceedings there was a judgment against both defendants, yet it can not be made to appear against which of the defendants the execution issued, even admitting that the memorandum of the justice on his docket was evidence that an execution had been issued, about which we give no opinion. The execution was not in evidence, and the. plaintiffs relied on a memorandum on the justice’s docket, in these words: “ Fi. fa. issued the 3d day of June, 1844; alias fi. fa. issued on the 31st October, 1844. Returned, ‘ no goods of the within defendant found whereof to levy.’ ” To sustain this case, it was necessary for the plaintiffs to show that there was a judgment against two. Now with such an entry placed opposite a judgment against two persons, how is it possible to say that it was against both ? and even if it was against both, which of the two had no goods whereof to levy ? Oases have been decided on the difference between defendant and defendants — the singular and the plural. We do not know that the word defendant by itself, like the word- heir, has ever been taken as a nomen collectivum. We will not say that it may not be placed in such connection as to import a plural signification. This may seem a nice distinction, but, as before observed, we see nothing in this case on its merits wliicli should create an inclination to administer-the law otherwise than in all other cases. The plaintiffs’ title was acquired after another. In order to defeat that title they must be prepared to show that on their side the law has been complied with. They knew that they could only obtain a title by showing a compliance with the law.

Judge Ryland concurring,

judgment reversed, and cause remanded ;

Judge Leonard absent.