Kearney v. . Thomas

Seawell, J. 1. The appellants excepted to the introduction of the certified copies of the marriage license, record of marriage, and return of the officiating minister, kept, under the Virginia law, amongst the *162 records of tbe Hustings Court of tbe city of Petersburg. Tbe objection is that tbe signature of tbe keeper of tbe record was not under bis seal. We might question bere wbetber the Clerk of the Hustings Court kept a seal as keeper of records of tbis kind. However, tbat be did keep a seal as clerk of tbe Hustings Court is obvious from tbe record. Tbe appellants point out tbat tbe autbentication is not in accordance witb tbe Federal statute, Title 28, U. S. C. A., sec. 688. See G. S., Appendix 3. Had tbe autbentication been in strict compliance witb tbe Federal statute, and bad tbe certified copies been rejected, it would bave been error; but since tbe evidence was received, tbe situation is quite different. Tbe Federal statute implements tbe Constitution in requiring tbat full faitb and credit be given in each state to tbe public acts, records and judicial proceedings of every other state, and requires certified copies of records to be admitted in evidence when authenticated as provided by tbe statute. It is not intended to supplant, nor does it supplant, other modes of proof recognized as competent in tbe jurisdiction where tbe •exemplification is to be made. 20 Am. Jur., p. 833, sec. 986. Tbe whole purpose of certification, as we now understand it, is to avoid tbe necessity of bringing original documents from tbe places where they are kept, a matter over which tbe court would frequently bave no power, or of presenting witnesses who bad compared copies witb tbe original— a method still permissible under tbe common law. Certain assurances of genuineness must, however, attend tbe substitute method, and these bave been afforded by providing for certified copies witb conventional methods of autbentication, which vary witb tbe jurisdiction. It is not universally true tbat tbe want of a seal to tbe signature of tbe keeper of tbe records is fatal to tbe introduction of tbe certified copy as evidence. Tbe defect may be supplied by a further certificate under seal relating to tbe same facts. Tbe purpose of authentication is to guarantee tbat tbe original of tbe copy genuinely exists, as exemplified, and tbis is attained by showing: (a) Tbe authority of tbe person certifying, or tbat be is keeper of tbe record; (b) bis present incumbency of tbe office; and (e) tbe genuineness of bis signature or seal. Wigmore, 3rd Ed., sec. 1679. “By tbe doctrine of tbe present exception, tbe hearsay statement of a higher officer made in tbe shape of an original certificate may be receivable to evidence tbe authority, and incumbency, and tbe seal or signature of a lower officer.” Id., 1679. In tbis instance, these facts are supplied by tbe certificate of tbe presiding judge of tbe Hustings Court (in which tbe original records are kept) under seal of tbe court, which is tbe same seal used by tbe clerk in certifying tbe official character of tbe judge — tbe seal thus twice *163 appearing in connection with the certified copies. We think the defect complained of cured by the recitals, under seal, in the second certificate. The admission of the evidence will not be held for reversible error. 2. There is one consideration which goes to the heart of the case before us; that is, whether the burden of the issues submitted to the jury is properly placed on the plaintiffs or on the defendant. Determination of that question will afford a practical solution of nearly all the problems presented in appellants’ exceptions to the judge’s charge, without further detailed attention. We are of opinion that when the plaintiff attempts to assert a property right which is dependent upon the invalidity of a marriage, he must, as the attacking party, make good his cause by proof. Upon proof that a marriage ceremony took place, it will be presumed that it was legally performed and resulted in a valid marriage. Chamberlayne, Trial Evidence, p. 432, see. 475. For some unexplained reason, the trial court placed the burden of establishing the validity of the second marriage upon the defendant — although, of course, this was to the advantage of the plaintiffs and they cannot complain. Perhaps this misconception as to the burden of proof inspired some of the challenges now made to the adequacy of the judge’s charge to the jury under G. S., 1-180. While the burden was upon the plaintiffs to establish the invalidity of the second marriage, it was competent for them to carry that burden by any of the ordinary modes of proof, whether by direct evidence of fact (which the plaintiffs sought to do), or by presumptions recognized by the rules of evidence or established by statute, if there are such; but they could not recover because of a failure of the defendant to carry the burden of proof which does not in law belong to her. The plaintiffs argue that their case is aided by the presumption of the continuance of a status, or condition, once proved to exist — -namely, the first marriage — -and that it was the duty of the judge, without' special request, to instruct the jury that the first marriage, admitted to have taken place, is presumed to continue until the presumption is overcome by proof contra. This, however, involves another presumption of like character — to wit, the presumption of the continuing life of the wife of the former marriage. Assuming her to be still alive when the second marriage took place, there might be stronger reason to presume the continuance of marriage as against divorce. As a matter of fact, we shall find that the presumption cannot be indulged in either aspect. The laws of evidence do not recognize a presumption on a presumption. The facts upon which a presumption is based must be proved by direct evidence. Chamberlayne, Trial Evidence (Tompkins), 373, sec. 418. Moreover, proof of the second marriage adduced by the defendant, if sufficient to establish it before the jury, raises a presumption of its validity, upon *164 which property rights growing out of its validity may be based. Trial Evidence, supra, page 432, sec. 475. Gosset v. Gosset, 112 Ark., 47, 164 S. E., 759; Hunter v. Hunter, 111 Calif., 261, 43 Pac., 756; Turner v. Williams, 202 Mass., 500, 89 N. E., 110. It is to be noted here that the existence, or fact, of the second marriage was supported not only by reputation and cohabitation, but by the direct evidence of the defendant as to the ceremony of marriage, and by the certified copies challenged by the plaintiffs. Conflicting presumptions usually destroy each other, unless through some policy of the law, or artificial weight given by the statute, the stronger may prevail. However, without burdening the subject with too many technicalities, we quote from Wigmore on Evidence, sec. 2531: “It is not possible to say that there is a genuine presumption of the continuance of a particular human life, with a uniform application. The state of the pleadings will show whose duty it is to prove that a particular person was living at a certain time, and upon his showing the mere fact of life at a preceding date, the court will usually leave it to the jury to say whether he has proved his case.” That principle seems to us sound, and the 'defendant had the full benefit of it. Whether, upon request, the judge should have charged that such a presumption might be raised on direct proof that the wife of the former marriage still lived, we need not inquire. The weight of authority is against it. We find in Chamberlayne’s Trial Evidence,- supra, p. 376, sec. 416: “A second or subsequent marriage is presumed legal until the contrary be proved, and he who asserts its illegality must prove it.. In such ease the presumption of innocence and morality prevail over the presumption of the continuance of the first or former marriage.” This statement is so abundantly supported by well considered cases, so consonant with reason, and so consistent with analogous practices, as to justify its adoption. See, also, Jones on Evidence, Civil Cases, sec. 14, and cases cited. Without attempting further to deal with the mathematical niceties of shifting burdens, as yet not worked out with any degree of satisfaction, it is our opinion that the case was open to the jury upon all the evidence submitted, and the trial court could only have confused them with an unsuccessful attempt to balance mere administrational presumptions, which are, after all, no more than inferences from the evidence. The burden of proof rested on the plaintiffs, and the evidence on material issues was substantially conflicting. In this situation plaintiffs moved for a directed verdict, which was denied. Here there is no such thing as a directed verdict while the credibility of the evidence is still a matter for the jury; and it always is for the jury where the demand is for an affirmative finding in favor of the party *165 baying tbe burden, even tbougb tbe evidence may be uncontradicted. Mfg. Co. v. R. R., 128 N. C., 280, 38 S. E., 894, and cases cited; McIntosh, N. C. Practice and Procedure, sec. 574. Where tbe evidence is contradictory, obviously no instruction can be given, hypothecated on a finding of fact by tbe jury, which will have the effect of a directed verdict either way. Boutten v. R. R., 128 N. C., 337, 340, 38 S. E., 920; R. R. v. Lumber Co., 185 N. C., 227, 117 S. E., 50; Porter v. Construction Co., 195 N. C., 328, 331, 142 S. E., 27. However, no prayer for instruction, as required by the statute — G. S., 1-181-— appears in the record, and we cannot indulge in speculation as to its form. Hicks v. Nivens, 210 N. C., 44, 47, 185 S. E., 469. Appellants, at most, regard the evidence as overwhelmingly in their favor. As to that, we express no opinion. It is sufficient to say that such a condition, if it existed, would not, in this jurisdiction, support the plaintiffs’ motion. The case was for the jury, and they have spoken. We have considered other exceptions not involved in the foregoing discussion, and do not regard them as meritorious. Upon the whole record, we find No error.