McCormick v. Deaver

22 Md. 187 | Md. | 1864

Goldsbobougii, J.,

delivered the opinion of this Court.

The principal question in this case arises out of the ruling of the Circuit Court for Frederick County, by which, the record offered by the appellants as the foundation of the suit in controversy, was not admitted in evidence. The question of the admissibility of this record was raised by the appellee’s plea of nul tiel record.

The record alluded to, professes to bo a transcript of proceedings had in the Circuit Court for Clarke County, in the State of Virginia, amongst which, the appellants allege there is a decree passed by the Court against the appellee for the sums therein stated. Upon this, as a foreign decree, the appellants instituted their action in the Circuit Court for Frederick County. The record is authenticated according to the requirements of the Act of Congress of 1790, ch. 11; and the appellee concedes that this authentication is certainly prima facie evidence of the correctness of the record. But lie insists that by an inspection of the record, it will appear that material portions of the proceedings have been omitted, and further, that the paper purporting to be the decree upon which suit was brought, was not signed by the Judge of the Circuit Court for Clarke County. By reference to the certificate of the clerk of that Court, we find that he certifies “that the foregoing is a true transcript of the record and proceedings in a certain cause lately depending in said Circuit Court, between Neill and West’s trustees, plaintiffs,' and Deaver and West and others, defendants, with all things touching the same, as fully and wholly as they now exist among the records of my office.”

In the absence of any special objection to this, record, this certificate imports such positive and absolute verity that it cannot be contradicted or the truth of it denied here, any more than in the State where it originated, certainly not by mere inference. See Wernwag vs. Pawling, 5 G. & J., 507. It is clear that, if the transcript contains a full statement of the proceedings amongst which is the decree relied on by the appellants, the plea of the appel-lee would be no legal defence to the present action. We deem it proper to say if the defect affirmatively and clearly appears on the face of the record, and that the whole of the proceedings have not been transmitted, the clerk’s certificate would not preclude us from a consideration of the defect, especially if that defect substantially affected the merits of the decree.

It is contended by the appellee that the record is defective in this, that -the deed which is made an exhibit in the cause, refers to a schedule of debts made part of the deed, and that this schedule is omitted in the transcript. “The clerk says the schedule referred to was recorded with the deed and fills over fifty pages of the deed book.” Whatever may be said about the schedule forming part of the deed, it certainly does not follow from the clerk’s statement, that it was exhibited with the bill or omitted by him. He does not so state and it is but inferential. It cannot outweigh the intendment which must be made in favor of the record as certified, especially as the clerk states ‘ the following are copies of the exhibits filed with the bill.”

It is further contended that the record is defective because the clerk states that “the exhibit B, filed with the bill of complaint, being a receipt and statement filed by Henry T. Deaver, is not in the papers and cannot be found.” The absence of this last paper thus accounted for, is no sufficient ground for impeaching the decree.

(Decided October 31st 1864.)

Though it is objected that the paper purporting to be a decree was not signed by the Judge or clerk of the Court, yet, in our opinion, there is intrinsic evidence on the face of it, that the whole matters in controversy were submitted to the judicial action of the Court, and were finally passed upon; and in the absence of any proof to the contrary, this Court will infer that the whole of the proceedings were in conformity with the legally authorized practice of the Courts in Virginia in entering decrees— more especially as the clerk certifies that the decree was a part of the record of proceedings, and his certificate authenticates the record as we find it. In the case of Case vs. McGee, 8 Md. Rep., 14, this Court said the Act of 1190 rests upon the assumption “that a proceeding of a Court of a different State, if authenticated according to that Act, is warranted by, and in accordance with the laws of the State.” The objection made by the appellee that there is a variance between the decree and the cause of action set out in the plaintiff’s declaration, is not sustained by reference thereto. The sums decreed to be paid by the appellee to the appellants, constitute the cause of action and are correctly and sufficiently stated in the declaration. After a careful examination of the whole case, we are of opinion that the record of proceedings in the Circuit Court for Clarke County is riot defective, and that the plea of the appellee was improperly sustained.

We shall reverse the judgment and order judgment to be entered in this Court for the appellant in conformity with the 14th section of the 5th Article of the Code.

Judgment reversed and Judgment for the appellants.