Ordway v. Conroe

By the Court, SMITH, J. The only question necessary to be discussed in this case* though all the others presented and argued — 48 — at the bar have been carefully considered, is,-whether the court below erred in rejecting the transcript offered in evidence, on the ground that it _was not properly authenticated. The admissibility of the record as evidence depends upon two questions: 1. Is it authenticated according to the act or acts of Congress, passed in conformity, .with section 1 of the fourth article of the constitution of the United States? and 2d. Is it admissible under the provisions of the Eevised Statutes of this state ? We think it can hardly be claimed that there is here even an approach to a proper authentication in conformity with the acts of Congress. This paper, purporting to be a récord, is rather a transcript from the minutes of the proceedings of the court in the conduct of the case. " A record proper, is quite another matter. But this transcript is undoubtedly a copy of the minutes of “judicial proceedings.” It informs us of the issuing of an attachment and the service thereof, of an order of publication, of the transfer of the case from the County to the Circuit Court, of the submission of the case to the court, of the finding of the court, and of the averment that “judgment be and the same is hereby rendered,” &c. But there is no recorded order of the court that the plaintiffs do recover, &c., no pronunciation of the sentence of the law upon the facts found. Yet we are not prepared to say that even this unartistic and meager document might not be received as competent evidence, if the circuit judge had certified that the certificate, &c., of the clerk was in due form.” Every state may prescribe and pursue its own forms of keeping and certifying its records, which is supposed to be known to the presiding judge or magistrate of the court in which the proceedings are had, and it is his certificate that the atiesta, tion is “ in due form,” which gives efficacy to the document under the act of Congress. Ferguson vs. Harwood, 7 Cranch, 408. Congress is expressly authorized by the constitution'to prescribe the manner in which the public acts, records and judicial proceedings of every state shall be proved,, and the effect thereof. Const. U. S., Art. 4, § 1. The circuit judge, whose certificate is appended to this transcript, only certifies that “ Hoyt Gr. Post, Esq., is, and was, on the 14th day of April, A. D. 1858, clerk of said county (county — 49 — of Ottawa, State of Michigan), and as such, clerk of the Circuit Court for such county, and is the officer in whose custody the records of said court are required by the laws of such state to remain.” This certificate is dated the 24th day of June, A. D. 1853. The certificate of the clerk is dated the 24th day of July, 1853. A record proper, purporting to be certified by the clerk or prothonotary of the proper county, does not require proof that such clerk or prothonotary is the officer in whose custody the same is required by law to be kept, provided it be accompanied with the certificate of the presiding judge that the attestation of the cleric is in due form. It is otherwise in regard to a mere transcript of the minutes of the proceedings of the court. 7 Oranch, 408. The judge does not certify that this attestation is in due form. He does not even certify that Hoyt G-. Post was,' at the date of his attestation, clerk of said court. The law of Congress, iñ regard to the authentication of records, is simple enough, and it is no hardship to hold parties to a strict conformity therewith. The transcript offered in evidence in the court below, is wanting in the essential requisites demanded by the act of Congress, and is not, therefore, competent evidence under the provisions of that act. But it is contended that, although the transcript offered in evidence may not be authenticated according to the act of Congress, yet it is competent under the provisions of section 52 of chapter 98 of our Revised Statutes. This position of the counsel for the plaintiff in error, presents a question of greater difficulty. The language of this section is as follows: “The records and judicial proceedings of any court of any state or territory of the United States shall be admissible in evidence in all cases in this state, where authenticated by the attestation of the clerk, prothonotary or other officer having charge of the records of such court, with the seal of such court annexed.” We think it can hardly be contended, seriously, that any and every paper, claimed to be “records” and “judicial proceedings,” authenticated by the signature of the clerk and the seal of the court, are, by this act, made competent evidence “in all cases in this state.” On the contrary, the record or copy of a record, if such it purports to be, must be complete in itself. In other — 50 — words, the calling it a record by the attesting clerk, or by the party offering it in evidence, does not make it so. A record of a court has a fixed judicial meaning, and certain requisites are essential to give to it the character which the term implies. So with regard to “judicial proceedings” which are reduced to writing, and thus perpetuated by the recording officer, under the order and direction of the court or presiding magistrate. Again, the record or transcript must be relevant to the particular case, and conformable to the particular rules of evidence in relation to the issue to be determined. Although the language of the statute is, that the records and judicial proceedings shall be admissible “in all cases in this state” when so authenticated, it is not intended that they must be admitted whether they are relevant or not. Again, they must be “ authenticated by the attestation of the clerk.” The attestation of the clerk alone is not sufficient, but they must be “authenticated.” What, then, is the authentication required ? The section of the statute above cited does not inform us. The authentication of any document is that which is certified concerning it by the proper certifying officer or officers. If what is thus said of it amounts to a legal “ authentication,” and is attested by the clerk or prothonotary, or other officer having charge of the records of such court, with the seal of the court annexed, it is admissible under our statute, if it be relevant to the issue. But we are constrained to remark, that as the constitution of the United States provides that full faith and credit shall be given to the public acts, records, &c., of every other state in the Union, and as an express power is granted by the constitution to Congress to prescribe the manner in which such acts, records, &c., shall be proved, and the effect thereof, it would be better to have them in all cases authenticated according to such act of Congress, and that state legislation should either conform thereto, or cease to act upon the subject. But it has been several times decided, and may perhaps be considered as settled, that although it is imperative upon the courts of the respective states to admit in evidence public acts, records and judicial proceedings of another state, when proved and authenticated in the manner prescribed by act of Congress, yet each state may. prescribe other rules for the admission of such public — 51 — acts, records, &c., in evidence, not incompatible with sucb acts of Congress. As the alleged transcript of record offered in evidence in this case is not authenticated according to the act of Congress in this behalf, the only question necessary- to be consulted is, whether the authentication of this record, attested by the clerk, is such as entitles it to admission as evidence under the provisions of our statute. As before remarked, the language of section 52 of chapter 98 of the Revised Statutes of this state, is very broad and comprehensive, but it must, of course, be construed in harmony with other rules of evidence, which it was in nowise intended to modify or repeal. The 52d section does not attempt to prescribe the substance of the authentication. Every state, if not every court of general jurisdiction, has certain forms by which its proceedings, and the record thereof, shall be authenticated. Hence the act of Congress requires, not any particular form of authentication, but that the presiding, judge or chief magistrate of the .court shall certify that the attestation of the clerk is in “ due form,” leaving to each state or court to adopt its own form of authentication, and making the certificate of such judge or magistrate conclusive evidence in regard to the sufficiency and correctness of the form used. But there is nothing of the kind to aid this transcript. The circuit judge certifies that Hoyt Gh Post is the clerk of the court, and that he is the officer in whose custody the records of the court are by law required to be kept, but he does not certify that his attestation is in due form. To repeat, then, what is the form and substance of the authentication requisite, under the provisions of our statute, to render copies of the records, &c., of other states admissible in evidence, conceding that they are not authenticated according to the acts of Congress? In Fauks vs. Ray (1 Wis. 108), we decided that “copies of papers duly authenticated by the officer in whose custody they are by law required to be kept, or by the officer whose duty it is by law to authenticate them, are admissible in evidence in all cases in which, by law, the originals would be admitted.” In that case the copies offered were admitted to be “ duly certified,” and we are to presume that their authentica — 52 — tion was in “ due form,” and the court was not called upon, nor had it the means to enable it to say what should be the due form of authentication. Subsequent to section 52, above quoted, and in the same chapter (§ 66), there is the following provision, which may, perhaps, throw some light upon the intention of the legislature, though we cannot refrain from again expressing the wish, that all records, or exemplifications of records, of the courts of other states, were held strictly to the rule of authentication prescribed by acts of Congress. “ Whenever a certified copy of any affidavit, record, document or other paper is allowed by law to be evidence, such copy shall be certified by the officer in whose custody the same is required by law to be, to have been compared by him with the original, and to be a correct transcript therefrom; and if such officer have any official seal by law, such certificate shall be authenticated by such seal.” Rev. Stat. Chap. 98, § 66. It might be a question whether this section refers merely to such records, papers or documents as are not in their nature judicial, or whether it is designed to prescribe the substance of the certificate by which all copies of records, &e., whether judicial or otherwise, must be authenticated. But the next succeeding section (§ 67) seems to preclude any such distinction. It provides that “ the preceding section (§ 66) shall not be construed to require the affixing of the seal of a court to any certified copy of a rule or order made by such court, or of any paper filed therein, when such copy is used in the same court, or before any officer thereof,” seeming to imply that whenever a copy of a record, or of any paper, shall be offered in evidence in any other court than that in which it is made, it must be certified according to the requirements of the 66th section, and that this section embraces copies of judicial, as well as other records. We think, therefore, that the transcript offered in evidence in. this case must be tested by the rules above suggested. When the copy of a record of another state is authenticated according to the act of Congress, every state court is bound to give it full faith and credit. But if it be not so authenticated, it must appear from the certificate of the officer having the legal custody of the record, to have been compared by him with the original, — 53 — and to be a correct transcript therefrom. We think the 66th section of chapter 98 of our Revised Statutes is intended to prescribe the substance of the authentication which is to be attested by the clerk or prothonotary, in accordance with the 52d section of the same chapter. This transcript bears little of the semblance of a record. It would seem to be a mere transcript from the journal of the court. There is no judgment roll or record made up. There is no formal judgment recorded. It is true there appears to be copied from the minutes or journal, a finding .of the court, and a memorandum that judgment was rendered, But there is no recorded judgment in proper and legal form. Yet, if the presiding judge had certified under the act of Congress, that the attestation is in ’■‘due form,” the same faith and credit would be given to it as it would be entitled to in the state of Michigan. From the argument of counsel, it would, seem that considerable effect ought to be given to the certificate of the circuit judge. Such certificate derives significance and potency only from the act of Congress, and unless it be in conformity with that act, it avails nothing. The certificate of the circuit judge states that Hoyt Gr. Post is clerk of the Circuit Court of Ottawa county, in the state of Michigan, and is the officer in whose custody the records of said court are by law required to be kept. But it does not state that the said circuit judge is ihe judge, chief justice, or presiding magistrate of the Circuit Court, in which the record remains, nor can that fact be implied from his signature, nor that the attestation of the clerk is in due form. This transcript presents a series of papers attached or wafered together; the writ, declaration, plea,.journal entries of rules or orders of court, &c., &c., each one certified by the clerk to' be a true copy of the original, but not one is certified to have been examined or compared with the original, and to be a correct transcript therefrom. We think that to admit these papers or this document in evidence as a j udgment record, would be too great a departure from established forms, and open the door to indefinite mischief and confusion. Judgment affirmed, with costs.