113 Wis. 578 | Wis. | 1902
It is not seriously controverted that claimant has established that he is an uncle' of the deceased, Mrs. Armitage, nor that the evidence sufficiently negatives the existence of any other kin of equal or superior proximity, except that of the sister, Sophia Charlotta Sandberg, and her daughter, and the legitimacy of that daughter, and the existence of the six maternal uncles and aunts. Much of
“Any church, parish or baptismal record, ... in which record are preserved the facts relating to any birth, marriage or death, including the names of the persons, dates, places and other material facts, may be admitted as prima facie evidence of any fact aforesaid.”
These documents are both church and parish records, and are shown to have been kept pursuant to the law of Sweden, and to be in the legal custody of the person who produced them. True, this statute was not enacted until after the death of Mrs. Armitage, but it had been enacted and was in full force at the time of the trial. Of course, the regulation of procedure and certification of documents for evidentiary purposes is wholly in the hands of the legislature, and is controlled by the law in existence at the time when the evidence is offered. Such statutes neither create nor impair vested rights, nor in any wise affect obligation of contracts. They regulate procedure merely, and speak from their date with reference thereto. Hopt v. Utah, 110 U. S. 574, 590; Thompson v. Missouri, 171 U. S. 380. We therefore need not spend time to consider the admissibility of these documents at common law, nor under our statutes as they existed at some earlier- time. Neither need we be given pause bv the decision of this court in Lavin v. Mut. A. Soc. 74 Wis. 349, which merely decided that a baptismal certificate
Passing from the question of admissibility to the question -of probative force, and postponing for the present that of the identity of the persons, the most serious inquiry is •whether the declaration in the record of the birth of the in■fant, Gunhild, that at the time her mother was a spinster, is •any evidence of illegitimacy. That inquiry turns primarily upon the force of our statute, which, as above quoted, provides that the record shall be •prima, facie evidence of any material fact stated therein, in this respect extending the ^efficacy of such records beyond that accorded them at common law according to many decided cases. The question at ■once arisés under this statute whether the marital status of the mother is a material fact in a birth record. The law pf .■Sweden, which is somewhat imperfectly presented in the record, seems to require a record of all “children, illegiti.mate as well as legitimate, and the names of their parents ■and godfathers and godmothers, . . . with short annotations regarding their burial places, state and capacity, life, and age.” It also authorizes certain officials to provide ■formulas for books which may be considered necessary regarding births, baptisms, deaths, and burials. It thus appears that the laws of Sweden, at least, indicate the importance of preserving in the records the fact of legitimacy and ■illegitimacy. Little, if any, ingenuity is necessary to suggest reasons for materiality, both public and private. Eights •of the individual as against private property and as against •other relatives may well be affected thereby; also its rights ■to local citizenship, protection, or support. Besides this, "the information, for statistical purposes, may be very im-fjortant. The fact that a public officer did, in the perform-
A further question arises and is argued, common to a large number of these records, as to the necessity of evidence other than the records themselves to establish prima facie the identity of the persons named therein with those-whose existence is material in this case. There is a line of au
The next serious issue is whether the claimant has established the death of the sister Sophia Charlotta Sandberg. To-do this he has offered affirmative proof by a legal death certificate and by the testimony of the attending physician that in 1889 there died in Chicago one Charlotte Sandberg. He has also offered, both as confirmatory of the identity of the person who then died and as affirmative proof, the fact that there was delivered to Mrs. Armitage at about this same time a telegram informing her of the death of her sister in Chicago, which she evidently received as authentic, for she was-very much affected thereby, as the witness who delivered it to her testifies. These are followed or supplemented by testimony of a gentleman who -aided Mrs. Armitage with her correspondence and business, and was in a position, probably, to know if the fact had been otherwise, that he never knew of her receiving any communication from or information of
. As to the effect of the proof, undisputed, of the death of a Charlotte Sandberg.in Chicago, there is only the question of identity. It is proved by .the testimony of the attending physician that this woman described herself as of Swedish birth, and as of the same age as Mrs. Armitage’s sister; who, by the way, it is shown commonly passed by the name of Charlotta, instead of Sophia. He also gives a physical description of her, which corresponds in many respects with the physical description given of Mrs. Armitage’s sister by those who were acquainted with her six years before in Jefferson county, and differs in none. Further, the woman who died had a little girl of about the age of Gunhild, and who had certain physical characteristics corresponding with those remembered by her acquaintances in Jefferson county. It is also established that Mrs. Armitage’s sister Charlotta went to reside in Chicago in the latter part of 1883, and so continued for some time thereafter. From these facts we certainly are unable to say that the finding of the court that the woman who died in Chicago was Mrs.-Armitage’s sister is so without support in the evidence that we must set it aside.
The evidence with reference to the death of the six maternal uncles and aunts of Mrs. Armitage is wholly documentary. Their dates of birth were from 1811 to 1826, as appears by the parish records of Enkoping, the place of residence of their parents. Upon the same record where those births are narrated appears the death of three at ages ranging from one to five years. Of the identity of these, obviously, there can be no serious doubt. The death of the eldest aunt, Sophia Johanna Warman, born the 2d of December, 1811, is claimed to be established by the record from another parish, declaring the death of Johanna Sophia Erwall, bom War-man, whose date of birth was identical with that of the aunt. The identity of the person who died with the aunt is not very
We therefore reach the conclusion that the trial court was justified in finding with the claimant on all these controverted issues of fact, as also upon the ultimate issue to the effect that he is the only next of kin to the deceased, Mrs. Afmitage, and properly adjudged surrender of the estate to him.
The judgment for recovery of costs against the state is erroneous. No court is authorized to render judgment for costs against the sovereign state, in absence of statute giving express authority. U. S. v. Barker, 2 Wheat. 395; U. S. v. Ringgold, 8 Pet. 150, 163; Stanley v. Schwalby, 162 U. S. 255, 272; State v. Smith, 52 Wis. 134. We find no statute giving such authority. The doubt expressed by Ryan, C. J., in Noyes v. State, 46 Wis. 250, 252, whether general cost statutes might apply against the state in civil actions is readily resolved by reference to the rule that general statutes are not to be construed to include, to its hurt, the sovereign. Dollar S. Bank v. U. S. 19 Wall. 227, 239; U. S. v. Verdier, 164 U. S. 213, 219. The error thus committed in no wise
By the Court. — Tbe judgment appealed from, is modified by striking therefrom tbe award of costs, and, as so modified, is affirmed; No costs will be recovered by either party in this ■court.