Higgins v. Fuller

BRICE, Justice. This action was instituted to cancel a deed made by the defendant New Mexico State Tax Commission, conveying to the defendant Fuller (appellee) certain real property that had been sold to the State at a tax sale for taxes assessed against it. The merits of the case are not involved. But one question is presented; that is, whether the trial court erred in holding that plaintiff was required to prove the loss of the defendant’s application to purchase, which was a public record in the office of the State Tax Commission, as a foundation for the introduction of a copy thereof, then and there in the possession of defendant’s counsel. It seems to have been assumed by the trial court and counsel that the contents of a public record could not be proved except by the introduction of the original, until its loss had been proved to the satisfaction of the court. Proof of official records is provided for by Rule 44-(a) (2) and 44-(c), as follows: “Copies of any books, records, papers, or documents in any of the executive or administrative departments of the New Mexico state government authenticated under the seal of such department, shall be admitted in evidence equally with the originals. In cases where any executive'or administrative department has no seal, copies of any such books, records, papers, or documents authenticated under the official signature of the particular officer having custody of the same, accompanied by a certificate of the secretary of state, certifying as to the official signature and official status of .the particular officer, shall be admitted in evidence equally with the originals.” “This rule does not prevent the proof of official records or of entry or lack of entry therein by any method authorized by any applicable statute or by the rules of evidence at common law.” It is not claimed that the copy which admittedly was in the hands of defendant Fuller’s counsel was certified, but there is sufficient evidence before the court to show that this document was prepared by some person in the office of the State Tax Commission necessarily having the original in his possession 'from which to make the copy and who, therefore, could ■testify that it was an “examined copy.” The court seemed to be of the opinion that it was necessary for the appellant to establish the loss of the record in question before other evidence could be introduced to prove the contents of the record. This has never been the rule regarding proof of the contents of public records. The originals are kept for the inspection of the public and if allowed to be removed from the care of the custodian, or from the usual place of deposit each time they are needed for use in court as evidence, the public would be inconvenienced and the record might be lost. If a certified copy cannot be obtained (and it is shown clearly that it could not in this case), or even if it could be obtained, it does not preclude proof of the contents of the record by other proper evidence. An examined copy of a public record made by a person having or not having official custody thereof, is admissible in evidence to prove its contents. State v. Pendleton, 67 Kan. 180, 72 P. 527; Von Schoech v. Herald News Co., Tex.Civ.App., 237 S.W. 651, citing 1 Greenleaf on Evidence, Sec. 9, 485, 508 and 509; Anthony Doll & Co. v. Hogan, 40 N.M. 55, 53 P.2d 649; 32 C.J.S., Evidence, § 650; In re State Question No. 236, etc., 183 Okl. 355, 82 P.2d 1017; Wig-more on Evidence, Sec. 1273; Jones on Evidence in Civil Cases (3rd Ed.) Sec. 524. Before an “examined copy” can be introduced in evidence the person who made it or who compared it with the original must first testify that it is a copy. In discussing the matter of the admission of certified and examined copies of public records, Professor Wigmore states: “It is because of this distinction, created and maintained under another principle of the law of evidence, that there has been a tendency to recognize some distinction, for the present principle also, between the two kinds of copies, and to require a certified in preference to a sworn copy, in proving the contents of official documents. Such a distinction has no support, either in orthodox tradition or in reasons of policy. So far as the traditional practice is concerned, the sworn copy was in England for a long time almost the exclusive mode of proving official documents other than judicial records, because the Hearsay exception allowing the use of certified copies was there recognized (until statutory changes occurred) to only a limited extent. In the United States, however, owing to the broader scope given to this common law exception, and owing to its liberal expansion by statute at an early date, the certified copy came into more general, if not almost exclusive use; so that the youngest generation of practitioners in many jurisdictions seldom use or even see a sworn copy of an official document. Add to this that the statutes enlarging the exception to the Hearsay rule and making all kinds of official documents in almost all jurisdictions provable by certified copy have sometimes been misapprehended by the Courts; i. e. a provision intended merely to enable such a copy to be used where it could not be used before has sometimes been ignorantly treated as though nothing not specified in the statute could be used as a copy, and thus as if the statute provided an exclusive mode. In some such ways as these the notion has been sanctioned in a few jurisdictions that a certified copy should be preferred to a sworn copy. * * * “There is properly no preference for a certified or office copy over a sworn or examined copy; though a few jurisdictions recognize such a preference in some instances. There is no preference for a copy judicially established under statutes providing a mode for establishing a record of the contents of a lost or destroyed document. There is no preference for the transcriber personally over any other person competent to verify the copy.” 2 Wigmore on Evidence, Sec. 1273. Also see State v. Lynde, 77 Me. 561, 1 A. 687, in which it is stated: “Examined copies are, in England, resorted to as the most usual mode of proving records. * * * The mode is explained and commended in Best’s work on Evidence, (Sec. 486.) It seems to have prevailed in many of the states, including Pennsylvania and New York. It was at an early date adopted in some of the federal ■circuit courts. * * * It is not an unknown mode of proof in New England. It is spoken of as a well-settled doctrine in New Hampshire. * * * In Spaulding ■v. Vincent, 24 Vt. 501, it is said: ‘The ■more usual method’ of proving a discharge in a foreign court of bankruptcy ‘is a sworn (Copy.’ Mr. Greenleaf says * * * ‘Where the proof is by copy, an examined ■copy, duly made and sworn to by any competent witness, is always admissible.’ In Atwood v. Winterport, 60 Me. 250, the rule is casually approved; Appleton, C. J., there saying, while speaking of the mode of proving an army record: ‘A sworn copy is admissible, or a copy certified by the propter certifying officer.’ “Why not admissible? The evidence is :as satisfactory, certainly, as a certified ■copy. In the latter case we depend upon •the honor and integrity of an official, and in the former upon the oath of a competent witness.” If, therefore, the appellant could ■establish by the maker of the copy that it was an “examined copy,” it was admissible ■in evidence. The trial court should have re■quired the production of the copy of the record then in the possession of the appellee’s counsel, and have permitted its introduction in evidence if the person who prepared it had testified to facts which would have proved it to be an examined copy. The introduction of such proof does not ■depend upon whether the record is in the bands of its custodian. It is admissible though the original may have been lost subsequent to the making of the examined copy. If appellant is unable to produce a certified copy or an examined copy to establish the contents of the record it may be necessary for him to establish the loss of the original and prove its contents by oral testimony. The decree is reversed and cause remanded to the district court with instructions to set aside its decree and grant to appellant a new trial. It is so ordered. SADLER, C. J., and MABRY and THREET, JJ., concur. BICKLEY, J., did not participate.