Portland Maine Publishing Co. v. Eastern Tractors Co.

289 Mass. 13 | Mass. | 1935

Donahue, J.

The plaintiff has brought an action on a judgment alleged in the declaration to have been recovered by it against the defendant in the Superior Court in the State of Maine. The defendant’s answer includes a denial that the plaintiff is a corporation and a demand that its incorporation be proved at the trial. At the trial, which was before a judge of a district court, the only evidence consisted of two documents admitted over objection by the defendant. One purported to be a certified copy of the plaintiff’s charter issued from the office of the Secretary of State of Maine and the other to be a copy of the judicial record, including a judgment in favor of the plaintiff, of an action brought by the plaintiff against the defendant in the Superior Court of the State of Maine. The trial judge found for the plaintiff and reported the case to the Appellate Division on the defendant’s objections to the admission of evidence and to the denial of requests for rulings filed by it. The Appellate Division ordered the report dismissed.

The copy of the judicial record of the action brought in the Maine court was authenticated by the purported signature of the clerk of that court under the court’s seal. The document therefore complied with the requirements.of our statute as to the authentication of a judicial record of the court of another State. G. L. (Ter. Ed.) c. 233, § 69. Under that statute a certificate from the judge that the clerk’s attestation is in due form or that the person signing as" clerk in fact held that office is not necessary. Kingman v. Cowles, 103 Mass. 283. “The clerk is the proper custodian of the records of a court, and the seal of the court attached to his certificate attests thfe possession of the records in the person who certifies, and a record so certified is admitted under our statutes without further proof.” Willock v. Wilson, 178 Mass. 68, 74. Since the document meets the requirements as to authentication of judicial records which our statute prescribes, it was properly admitted in evidence although it did not entirely comply with the somewhat stricter provisions of U. S. Rev. Sts. § 905. Kingman v. Cowles, 103 Mass. 283.

The defendant contends that even though it be held that the copy of the judicial record in the present case was adequately authenticated, it was incomplete in various respects and therefore should have been excluded. The certificate does not bear the date when it was signed by the clerk. Since its recitals show that it was so signed after the entry of judgment and issuance of the execution, the precise date of the clerk’s act of authentication is not material. The certification of a judicial record including the entry of final judgment need not contain a detailed statement of all the proceedings leading to that result; “it is enough that it shows the subject matter of the suit, jurisdiction over the parties, and the final judgment of the court.” Knapp v. Abell, 10 Allen, 485, 488. Makorios v. H. V. Greene Co. Inc. 256 Mass. 598. The copy of the record here admitted describes the proceeding in the Maine court as an “Action on account.” This sufficiently indicates that its foundation was a claim in contract, based upon transactions between the parties and described in the declaration in the form of an account. We think that this was an adequate statement of the subject matter of the original action. The certified copy of the record in the original case recites that service was made on the defendant on a given date. The defendant contends that this is not sufficient to show service on the defendant, in the absence of the production of the original writ and return of service or a certified copy thereof, unless it is shown that the writ had been lost. Cases cited by the defendant which deal with the circumstances when it is necessary in a later action to produce the original writ issued by a court in this Commonwealth and the return thereon and when paroi evidence of their contents is admissible (see Kindle v. Healy, 204 Mass. 48, 52, and cases cited) are not here applicable. There is a presumption in favor of the regularity of the proceedings in the Maine court, the general jurisdiction of which is not controverted by the defendant, Robinson v. Freeman, 236 Mass. 446; Tucker v. Columbian National Life Ins. Co. 232 Mass. 224, 230, and the clerk’s certificate of the record stating that service was made on the defendant is prima facie, although not conclusive, evidence of such service of the writ. A defendant who is sued in this Commonwealth on a judgment obtained in the courts of another State may plead and prove lack of jurisdiction over him because he was not duly served with process, Chicago Title & Trust Co. v. Smith, 185 Mass. 363, 366; Robinson v. Freeman, 236 Mass. 446, and thus rebut the prima facie evidence furnished by the recital of service appearing in a certified copy of the judicial record of the case in which judgment was entered. Gleason v. Dodd, 4 Met. 333, 342. The defendant did not in the present case plead insufficiency of service of the writ in the original action. The recital in the authenticated record of the Maine court, without evidence as to the original writ and the return thereon, afforded a sufficient basis for the finding that service had been made upon the defendant and that the defendant was thus brought within the jurisdiction of the Maine court.

The name by which the defendant in each case was sued is the same: "Eastern Tractors Co., Inc.” The fact that the defendant in the original action was described as "having its principal place of business at said Portland” and in the present proceeding as "having an usual place of business in Cambridge” in this Commonwealth, does not indicate lack of identity. It is not unusual for a corporation having its principal place of business in another State also to maintain a usual place of business here. It has been said, in a case where the fact of the conviction of an individual of a crime was involved, that bald identity of name without some confirmatory evidence was not enough to indicate identity of person, Ayers v. Ratshesky, 213 Mass. 589, 594; and in cases where the names of persons were somewhat although not precisely alike that similarity alone was not sufficient. Hinds v. Bowen, 268 Mass. 55, 58. Souza v. Metropolitan Life Ins. Co. 270 Mass. 189, 192. We think that the principles upon which those cases rest are not here applicable and that from the identical name of the defendant in each case, which was not that of a person but of a corporation, and not a common or conventional name but a distinctive one, that the trial judge in the absence of anything to indicate the contrary was warranted in drawing the inference of identity. (See United States National Bank v. Venner, 172 Mass. 449; Washington County National Bank v. Lee, 112 Mass. 521.)

The document purporting to authenticate a copy of the plaintiff’s corporate charter, which was admitted in evidence, does not conform to the requirements of U. S. Rev. Sts. § 906, which provides that such nonjudicial records of a State “shall be proved or admitted in any court . . . in any other State ... by the attestation of the keeper of the said records . . . together with a certificate ... of the governor, or secretary of state . . . [or of other designated public officers], that the said attestation is in due form, and by the proper officers. ...” The certificate here presented does not disclose that the Deputy Secretary of State who signed it was the keeper of such records and there is no certificate by any of the public officers designated in the statute that the attestation was in due form or by a proper officer. These are essentials which are prerequisite to the admission of such a document under the United States statute cited. Bay State Wholesale Drug Co. v. Whitman, 280 Mass. 188, 193. No statute in this Commonwealth undertakes to provide a method for the introduction in evidence of nonjudicial records of another State. While the United States statute furnishes a method of authentication of a copy of a nonjudicial record of a State which may be followed by the courts of any other State in passing on the question of its admissibility, it is not exclusive of other methods of authentication and does not prevent the admission in evidence of a copy not authenticated in all respects in accordance with the specifications in the statute. Wigmore, Evidence, § 1680a. We think that the document purporting to contain a copy of the plaintiff’s charter of incorporation was in the circumstances presented sufficiently authenticated to be admitted in evidence. By authority of G. L. (Ter. Ed.) c. 233, § 70, judicial notice may be taken of the law of the State of Maine as expressed in certain sections of the Constitution and statutes of that State. “The records of the State shall be kept in the office of the Secretary, who may appoint his deputies, for whose conduct he shall be accountable.” Constitution of Maine, art. V, Part Third, § 2. “The secretary of state shall'keep his office at the seat of government; have the custody of the state seal, and preserve all records in such office, at the expense of the state.” Rev. Sts. of Maine (1930) e. 2, § 60. Before a corporation formed under the laws of Maine can commence business there must be filed in the office of the Secretary of State a certificate of its organization. Rev. Sts. of Maine (1930) c. 56, §§ 5,10. The certificate as to the plaintiff’s incorporation bore the seal of the State of Maine. The impression of that seal on the document furnished evidence that it was executed by the Deputy Secretary of State who signed it and no additional evidence of his official character was necessary. Wigmore, Evidence, § 2161. The certificate was issued by a Deputy Secretary of State from the office of the custodian of the State seal and the office where such records are by law required to be kept. There being nothing to raise the slightest doubt to the contrary, the trial judge did not err in admitting the document and in finding that the plaintiff was a corporation.

The substance of the defendant’s requests which were refused by the trial judge has been dealt with in whát has earlier been said. They were properly refused.

Order dismissing report affirmed.