Trigg v. Conway

OPINION OF THE COURT. On the trial of this cause, the counsel for the defendant made two objections to the admissibility of the record from the Jefferson county court of Kentucky: First, that it was not properly authenticated; and second, that it purported on its face to be a partial record. This- record is conceded on all hands to have been indispensable to a recovery on the part of the plaintiff; and, as the jury have found for her, it follows, as a necessary consequence, that a new trial must be granted on this ground alone, if that record was not admissible, irrespective of the other points .urged by the defendant’s counsel, and on which no opinion is intended to be expressed. The counsel of the defendant has produced a number of adjudged cases of controlling authority, and which are conclusive, to show, that the first objection made by him to the admissibility of the record, was tenable, and should have been sustained. The specific objection to it is, that the presiding magistrate has omitted the statement in his certificate, that the attestation of the clerk is in due form. This is a fatal defect, as the cases cited by him demonstrate. And other cases to the same effect will be found industriously collected, in note 771, by Cowen and Hill, in 3 Phil. Ev. 1120, 1132. The act of congress of May 26, 1790 (1 Stat. 122), expressly declares that “the records and judicial proceedings of the courts of any state shall be proved or admitted in any other court within the United States, by the attestation of the clerk and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form.” And when so authenticated, they are entitled to the same faith and credit as in the courts of the state from whence the same are taken. In Smith v. Blagge, 1 Johns. Cas. 238, it was said by the court: “We cannot officially know the forms of another state, and therefore they ought to be proved. The act of congress directs the mode of proof, and requires that the presiding judge of the court from which the copy is obtained, shall certify that the attestation is in due form.” Hence a mere certificate verifying the handwriting of the clerk is not enough. Craig v. Brown [supra]. The intention of the act of congress' was, not that the attestation should be according to the form used in the state where offered, or to any other form generally observed, but according -to the forms of the court where the proceeding was had; and the certificate of the presiding judge is the only evidence that can be received that such form has been observed. The record not being admissible, [196] it follows, tliat a new trial must be granted, the costs to abide the event of the suit. Ordered accordingly. [NOTE. The plaintiff subsequently removed to and became a citizen of Arkansas, and after her death John T. Trigg, also of Arkansas, became administrator, and moved to be substituted as plaintiff, and for a sci. fa. to bring in the representatives of James S. Conway, deceased. The motions were granted. Case No. 14,173.]