Stevens v. Supervisors of Clack County

43 Wis. 36 | Wis. | 1877

Lead Opinion

Ryan, C. J.

But for one difficulty, we should have given *39the same judgment in this case, as in Marsh against the same defendants, decided at the same time.

The appellant, in proving his title in the court below, offered in evidence what purported to be the copy of a document oil file in the office of the secretary of state, verified by the certificate of that officer.

Sec. 71 of eh. 137, E. S., requires such a certificate to state that the copy has been compared with the original by the officer in whose custody it is and who gives the certificate.

The appellant contends that the certificate in this case is taken out of the general statute by sec. 7 of ch. 112 of 1856. We cannot agree with him. "We do not think that the section was intended to dispense, in a particular case, with the general certificate required of all public officers, certifying to copies of documents in their custody. Both statutes may stand together. And the phrase, certified to he correct, in sec. 7 of the particular statute, means so certified according to the provisions of the general statute.

The.certificate of the secretary of state offered in evidence does not state that he has compared the copy with the original; but only that it has been compared. For all that appears by the certificate, the comparison may have been made by private persons. It is true that the secretary certifies that the copy is correct. But he may do that in faith of a comparison made by others, not by himself; whereas he is required by the statute to certify to the correctness of the copy upon faith of a comparison made by himself only. Ordway v. Conroe, 4 Wis., 45; Manning v. McClurg, 14 id., 350; Hackett v. Bonnell, 16 id., 471; Best v. Davis, 18 id., 386.

It was stated by the appellant that the form of the secretary’s certificate was the samepvhich always had- been and still is used in the secretary’s office. We can only say that, if such be the case, it is time that the secretary of state made himself acquainted with the terms of a statute about as old as his office.

*40We regret that we are obliged to affirm this judgment upon such a technical objection to the appellant’s evidence. But the statute appears to us to be wisely framed, as a check upon the looseness of business in public offices; and we would not, if we could, dispense with strict compliance with its provisions.

By the Court.- — The judgment of the court below is affirmed.





Rehearing

On a motion for rehearing, appellant’s counsel asked the court to modify its judgment so as to direct a new trial, as the only means of preventing obvious and gross injustice, citing, in support of this practice, Law v. Grant, 37 Wis., 548; McWilliams v. Bannister, 40 id., 489; Manning v. Grant, 42 id., 555; Tay. Stats., ch. 139, § 7, p. 1632; Griffin v. Marquardt, 17 N. Y., 32; Clayton v. Yarrington, 33 Barb., 146; 2 Til. & Shearm. Pr., 560.

Mr. Finney, contra, argued, among other things, that the discretionary power of this court in awarding new trials, under the statute, applies only where there has been a reversal for error, and all the cases cited on the other side from appellate courts were of that character; and that, even in the trial court, a new trial will not be granted for a mere mistake of law. 1 Gra. & Wat., 195; 2 id., 145, note; 5 Wend., 127; Tait v. Foster, 1 Pin., 514, 517; Dexter v. Arnold, 5 Mass., 302, 315; Massie v. Graham, 3 McLean, 41, 52; Purcell v. Miner, 4 Wall., 521; Rubber Co. v. Goodyear, 9 id., 805, 806; McMicken v. Perin, 22 How. (U. S.), 282; Livingston v. Hubbs, 3 Johns. Ch., 125; Smith v. Lowry, 1 id., 321, 322; Wiser v. Blatchley, id., 488; Floyd v. Jane, 6 id., 482, 483.

Ryan, C. J.

The learned counsel who make this motion, do not question the ground of our decision of the appeal, or the decision itself. They ask only that the judgment of affirmance be so modified as to direct a new trial in the court below.

*41"We know of no case in this court, or indeed elsewhere, in which a judgment of affirmance has directed a new trial. Indeed affirmance of a judgment, ex vi termvni, seems to preclude a new trial. For, in the ordinary course of practice, a trial after judgment is unknown.

When judgment in a suit in equity is reversed, it rests in the discretion of the court to direct final judgment for the successful party, or in proper cases to direct a new trial, or in doubtful cases to remit the question of a new trial to the discretion of the court below. Du Pont v. Davis, 35 Wis., 631; Law v. Grant, 37 id., 548; Mc Williams v. Bannister, 40 id., 489. And even this discretion in equity cases upon reversal, the court takes by statute. Miner v. Medbury, 7 Wis., 100; Carney v. Emmons, 9 id., 114; Du Pont v. Davis, supra. There is neither statute to authorize, nor practice to sanction, a discretion for a new trial upon affirmance. Such a discretion would virtually convert affirmance into reversal.

We affirmed the judgment in this case with reluctance. And with like reluctance we must leave the appellant to the consequences of the judgment. It is better that parties should sometimes suffer undue results of their litigation, than that courts should assume arbitrary discretion to relieve them, by doing violence to the law. Misera servitus ubi jus vagum.

By the'Cotvrt. — The motion is denied.