Eagle & Phenix Manufacturing Co. v. Bradford

Bleckley, Judge. 1. The verdict was recorded on the minutes. The original papers were all lost, and if they were ever recorded in the record of writs, etc., the book containing the record was lost also. The originals were office papers, and being lost, were subject to be established, instanter, on motion: Code, section 3980. 2. The right to establish depends in nowise upon the previous recording or not recording of the papers, nor upon the preservation or loss of the record. The original papers, whether recorded or not recorded, are office papers; and they are equally so after the loss of the record as before. If they were recorded and the record preserved, there might be little or no use in establishing a copy, by the record or otherwise; but we cannot say that the right to establish; if for the purpose only of keeping the files of the court complete, would not exist. 3. The main case, after judgment was entered up for the plaintiff, was brought to this court by writ of error, and here the judgment was affirmed. The transcript on which this court acted, duly certified, was preserved here in the files, according to law; and on a copy of that transcript, certified by the clerk of this court, the court below acted in arriving at the contents of the lost papers; the same being entire, from the first word in the declaration to the last word in the judgment. This evidence was both competent and” sufficient. It is not suggested that any better was attainable. 4. Notice of this motion was not given to the defendant in the judgment. But notice has been held to be not absolutely necessary : 3 Kelly, 121. In the absence of notice, great .care should be taken, and very conclusive evidence required. Such evidence as was had in this case could be fully trusted; and with it, the danger of fraud or mistake was infinitesimal. That the plaintiff in error, who, it seems, is the claimant of certain property which is under levy by virtue of the fi. fa. founded on the lost judgment, was served with notice, neither hin [252] dered nor helped the proceeding. The copy established simply stands in lieu of the lost originals, and any attack which could have been made upon them can be made upon it. Judgment affirmed.