152 N.W. 504 | S.D. | 1915
This case was before this court in Peters v. Lohr, 24 S. D. 605, 124 N. W. 853. The facts and issues are fully stated in that decision, and need not be referred to at this time, further than is necessary to discuss the question presented
“Subscribed and sworn to before me this 26th day of June, 1900. -,
“Auditor of -- Co., S. D.”
One O. E. Anderson, called as a witness on behalf of plaintiff, testified that lie was county auditor of Hamlin county in 1900; identified the assessment book referred to. by the witness Brown; and testified that the blank spaces in the assessor’s return and oath, filled in in writing, were not filled in by him, and were not in his handwriting. He also testified that the handwriting- in fhe filled blank spaces was that of one E. S'. Brown, who was his deputy in the year 1900. He also testified, in effect, that to the best of his knowledge and belief, he never administered the oath to the assessor, Steie.
Ed S. Brown, again called as a witness for plaintiff, upon examination of the original assessor’s return and oath, testified
The defendant offered in evidence the deposition of Chas. E. Steie, taken at Emmons, N. D., who testified that he had resided in North Dakota for 7 years, and prior to that time he had lived in Hayti township, £5. D., for 15 years; that he was township assessor of that township in 1900; that he completed the assessment and returned the assessor’s book to the county auditor, Anderson, and at that time signed the return and oath in the back part of the assessor’s book; that the county auditor, Anderson, at that time administered the oath to him. -Defendant thereupon asked the notary taking the deposition to have attached to. the deposition and marked as “Exhibit C” a purported photographic copy of the assessor’s return and oath. Plaintiff’s counsel thereupon objected to Exhibit C as incompetent, irrelevant, and immaterial, not within .the issues of the case, and incompetent for any purpose, and not the best evidence. (Similar objections were made to other photographs attached to the deposition; -but they are not material to the issue here presented.) He also testified that Auditor Anderson filled in. all the blanks in the assessor’s oath and return shown by the photograph before his signature thereto, on that day, and that Anderson administered the oath to the return. The testimony of this witness concerning the assessor’s oath and return appears to. have been based largely upon the purported photographic copy of Exhibit C, which was again objected to by appellant’s counsel at the trial, among other things, as “not the best evidence.” The objection was overruled, and this, ruling is. assigned as error. In Re McClellan, 20 S. D. 498, 107 N. W. 681, photographic reproductions of portions of enlistment papers in the British army were held properly received in evidence with respect to the dates of a soldier’s, enlistment and desertion, where original army records could not be produced, and the photographer testified he took a correct negative of the original records, and that the photographs were correct and exact photographs of ■the originals.
In Eborn v. Zimpelman, 47 Tex. 503, 26 Am. Rep. 315, which appears to be a leading case, and is cited by Prof. Wigmore, in his work on Evidence (volume 1, § 797, .note 4), it
“If photographic copies of writing may ibe made useful as affording- increased facilities for obtaining the testimony of distant witnesses as to 'handwriting, our opinion is that, until the Legislature sees fit to: authorize their use for such a purpose under proper precautions, the courts can only allow it, where better evidence is not to be had, and that the mere fact that the witness .is a resident of another state, and the writings are on file in a court of this state, does not present such a case.”
Mr. Wigmore in the note to the text states- the holding thus:
“But the fact that the witnesses to the signature were in another state, and the original signature to be testified to was in the files of the court, did not constitute unavailability, sufficiently to allow the use of a deposition taken in the other state and founded on photographic copies sent to the witnesses- for examination.”
In the case at bar the primary evidence, the record of the auditor’s office, was in court, and therefore available. The precise objection urged by appellant is that, so long as the primary evidence is available, secondary evidence -by way of protographic copies cannot be used as a foundation for the evidence of a witness taken by deposition, and who is not within the jurisdiction of the court. If: the contents of the original record were directly in issue, the question would be a much more difficult one. But when a witness’ testimony does not involve, as a material fact, under the issues, the identification of the handwriting or contents of an -original record or document, -but is merely collateral thereto, it does not seem necessary that the original should be
Whether the oath was, in fact, administered depends upon the evidence contained in the recitals in- the tax deed, and the oral testimony of the witnesses Anderson, Brown, and Steie. The purported photographic copy of the -assessor’s return and oath and the original document were both before the trial court. The contents- and handwriting were merely collateral to the real issue. Unless the two were, in fact, identical in all material respects, we cannot assume that -the action of the .trial -court in making its findings of fact was in any degree influenced 'by the testimony of Steie, -so far as it was necessarily based upon -the photographic copy.
“Did you see Mr. O. E. Anderson write -those words in the assessor’s return and oath that day? Answer: Yes, -sir. Question: Did he fill all of the blanks in the assessor’s return and oath that day? Answer: All that s-how's here in this photograph he filled in the -book.”
This testimony was not addressed to, and- had no specific bearing upon, the real iss-ue, as to whether the oat-h was, in fact, administered to the witness Steie. If the oath was administered to Steie, the identity of the hand-writing was wholly immaterial. AVe think, therefore, that -t-his evidence falls within the rule an
We must therefore affirm the judgment and order of the trial court.