Willock v. WilsonWillock v. Wilson
This is аn action on a judgment rendered by a court in the State of Kansas against the defendant Wilson of this Commonwealth and one Johnson of the State of Vermont, copartners, having their' usual place of business in Boston in this Commonwealth. The action in the Kаnsas court was begun by an attachment of certain partnership property. In the present action the plaintiff discontinued as against Johnson, and was allowed to proceed against Wilson alone. To this Wilson excepted.
At the trial the plaintiff offered in evidence a certificate of the proceedings in the Kansas court, but no transcript or copies of any of the papers in the case. It was not contended that any service was made in the original action uрon the defendants, but
The first objection made by the defendant is that the judgment record of the proceedings of the court of a sister State should bear upon its face some evidence that the court from which it purports to come "is one of general and not of inferior jurisdiction. As a short answer to this objection it might be said that the certificate of the proceedings is not made a part of the bill of exceptions, аnd we do not know what it bears upon its face. We cannot therefore say that the court was in error in finding that the Kansas court was one of general jurisdiction. Knapp v. Abell,
The next objection is that the certificate of the proceedings is an incomplete and imperfect record, inasmuch as it does not show the existence of a writ, or the subject matter of the suit, or that there was any jurisdiction over it, or the defendants, or that there was any service of process or any issue joined. Here again it might be said that the certificate is not before us, and we cannot tell what it contains.
There is, however, among the pleadings in this suit, what the declaration alleges to be a certified copy of the record of the court in the suit in which the judgment wаs obtained, and we suppose that to be the certificate to the admission of which as evidence the defendant at the trial excepted. Assuming this to be so, we proceed to discuss the merits of these objections.
Upon an examinatiоn of the certificate it is seen that it purports to be a record of proceedings “ in the District Court in and for the County of Shawnee and State of Kansas.” The title of the case is “ S. B. Willock, Plaintiff, vs. E. E. Wilson and W. B. Johnson, partners as Wilson & Johnson, Defendants.” It recites that on October 11,1898, the pаrties appeared for trial, “ the plaintiff appearing in person and by his attorney
In this action against these defendants upon that judgment, this record was amply sufficient to justify a finding that the court was one of general jurisdiction ; that it had jurisdiction over the subject matter of the suit, and also over the defendants, either because proper service had been made upon them or because they voluntarily entered a general appearance for the purpose of trying the case upon its merits ; that an issue was joined and tried before a jury, who found for the plaintiff; and that the judgment was rendered on the verdict. Brainard v. Fowler,
The defendant further objected 'to the admission of the certificate upon the ground that it was not properly authenticated, because it doеs not appear that the judge who signed it was the sole or presiding justice of the court, and because the attestation of the records is made by the deputy clerk. The federal statute upon this subject requires that the records shall be proved “ by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with the certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form.” U. S. Rev. Sts. § 905. The officers are the judge and thе clerk. The judge in his certificate in this case says that Callaghan is the “ clerk of said court whereof I am the judge.” He uses the definite article “ the judge,” in the very language of the statute, and the fair inference is that he is the sole judge of the court and the рroper person to sign the attestation.
■But the certificate as to the records is not signed by the clerk but by a deputy clerk. The statute requires that the attestation shall be made by the clerk. An" attestation by a deputy clerk is not within its terms. 1 Greenl. Ev. § 506. Morris v. Patchin,
Nor is this defect cured by the certificate of the judge that the attestation is in thе handwriting of the clerk, and that the attestation is made by the proper officers. The only thing to which under the statute the judge can certify is that the “ attestation is in due form.” This is a certificate simply that in the attestation the forms in use in the State from which the record comes have been observed, and this is necessary' because
But that statute was passed for the purpose of prescribing the kind of' proof of the existence of a record of a court in one State upon which a sister State might insist before it could be called upon to give to the record the full faith and credit imposed by the federal Constitution; and it is well settled that the method of authentication therein prescribed is not exclusive. Neither the federal Constitution nor the statute forbids the States from authorizing the proof of recоrds in other modes in their own State courts, providing always of course that the State statute if put into force shall not have the effect of excluding a record authenticated according to the requirements of the federal statute. 1 Greenl. Ev. § 505. Kingman v. Cowles,
• It rеmains to be seen whether the record was admissible under our own statute, which, so far as material, is as follows: “ The records and judicial proceedings of any court of another State . . . shall be admissible in evidence . . . when authenticated by the attеstation of the clerk, prothonotary, or other officer having charge of the records of such court, with the seal of such court annexed.” Pub. Sts. c. 169, § 67. It is not necessary under this statute that there should be any certificate by the judge of the court, although in Capen v. Emery,
- But where the certifying offiсer is other than the clerk, it should appear by the certificate or otherwise that he has “ charge
It is true that the judge certifies that the signature is in the handwriting of Callaghan the clerk, and that the attestation is in due form and made by the proper officers. We hardly see how it happened that if the clerk desired to mаke an attestation himself and was present with pen in hand to do it, he concluded to affix the name of the deputy clerk so as to make it appear not as his own personal act but as that of his deputy acting for him; and the most natural explаnation of the judge’s certificate is that he took a printed form to be used by him when the attestation was signed by the clerk and inadvertently signed it without erasing or modifying the printed clause. At any rate, even if we are to consider the certificate of thе judge as evidence of the statements therein contained, it still appears that the attestation is in form and in law not the clerk’s own personal act but the act of his deputy in the name of the clerk. The further statement of the judge that the attestation is in due form and made by the proper officers, especially when taken in connection with the statement that the clerk is the keeper of the records, falls far short of a statement that the person personally making the attestation, namely the deputy clerk, is the one having charge of the records.
The result is, that the attestation did not meet the requirements of the federal or State statute and the record was not admissible.
In permitting the case to go on against Wilson alone, no service having been made on Johnson, a non-resident, no error in law appears. Pub. Sts. c. 164, § 14.
Exceptions sustained.