Simons & Co. v. Cook

29 Iowa 324 | Iowa | 1870

Wright, J.

*• jüdojÍent : authentication, The errors relied on may be disposed cf very briefly. The' attestation of the clerk to the record should be in conformity with the form used hi the state of Kentucky (from whence the record comes, there being nothing in our statute making any other form sufficient or competent), and the evidence of this fact is to be found in the certificate of the judge of the court, of which the attesting officer is clerk. Brown v. Adair, 1 Stew. & Port. 49. With us it is not necessary that such certificate shall be signed by the judge, presiding magistrate or chief justice. This is the requirement of the act of congress (act of May 26, 1790). ■ Our statute makes the certificate of a judge, whether the presiding officer or not, sufficient. Rev. § 4058; Latterette v. Cook, 1 Iowa, 1; and see also Torbert v. Wilson, 1 Stew. & Port. 200.

When the certificate is, that “I, James M. Rice, judge of the,” etc. (reciting the court, circuit, county and state), and is signed in the name aforesaid, it is not necessary that the signature should be followed with the words, “Judge of said court,” or “A. judge, etc,” or “The judge, etc.” Such a certificate sufficiently shows that the person so signing is the judge of the court, and, as such, authorized to attest to the genuineness of the clerk’s certificate, and its conformity to law. Donoho v. Braman, 1 Overt. 329.

2. — absence evidence. In Craig v. Brown, Pet. C. C. 352, relied upon by defendant, the judge only certified that the person whose name was signed to the attestation was clerk, arid that the signature was in his own proper handwriting. There is nothing said about its being in conformity with the law of the state whence the record came.

In that case, too, the clerk only certified as to the seal used as a substitute, that none had been provided by the state, thus leaving the fact of the non-existence of the proper seal to argument. And while it is said that if the court has no seal that fact should appear in the certificate of the clerk or judge, it is not said howr formally such fact should be stated. In this case the w£fnt of the seal (court or public seal) appears in the attestation clause, not in the body of the certificate, and the judge certifies that the clerk’s certificate is in due form of law j that he is clerk ; that his signature is genuine ; that his official acts are entitled to full faith and credit, etc. A record thus certified we think was properly received as evidence.

s. — stamps, To make it so, it was not necessary (in answer to the only remaining objection made to this judgment) that these certificates should have attached to either a revenue stamp.

It was generally held, before congressional legislation dispensing with it, that the judicial proceedings of the states could not be thus taxed. The act of May 26, 1790, before referred to (found in the Rev. p. 986), provides the manner of proving or attesting these records. A transcript like that before us is not, in our opinion, an instrument, nor the certificates thereto certificates within the meaning of the federal revenue law.

Affirmed.