16 Mo. 426 | Mo. | 1852
delivered the opinion of the court.
The questions arising in this case, involve the propriety of the decision of the court below, in rejecting the paper A., being a transcript from the records of the Probate Court of Dallas county, in the State of Texas ; also, in rejecting the paper B., purporting to be an assignment of a note, by Robt. Wilburn, administrator of the estate of Edward Wilburn, deceased, to one John McCarty.
The defence set up by the defendant in his answer, depending, mainly, upon the existence of facts, which these papers
The rejection of this paper necessarily produced the rejection of the paper B. There is, then, no error in the act of the court in thus excluding these papers.
The defendant relied upon the fact, that, although these papers were not properly authenticated, so as to be evidence of themselves, yet, as they had been filed by John McCarty’s counsel among the papers and records of the suit brought by him upon the same note on which this suit is founded, against the same defendant, the defendant now had a right to use them as evidence against the present plaintiff. We see no force in this position. If the defendant in the McCarty suit, failed to avail himself of what was a fatal objection to the introduction of the paper A. in evidence in that action, it was at his own option; he had his object in view, and in all probability he turned it to his own advantage. But this by no means authorizes him now to read this very paper with its imperfect authentication, or rather without any authentication, ’ in the present action, wherein a totally different plaintiff appears upon the record. In every view of the case, then, there is no error in refusing permission to defendant to read these papers.
The judgment below is accordingly affirmed, with ten per cent, damages — the other Judges concurring herein.