Corby v. Wright

Decision Date20 April 1880
Citation9 Mo.App. 5
PartiesJOSEPHINE A. CORBY, EXECUTRIX, Respondent, v. JOHN W. WRIGHT, Appellant.
CourtMissouri Court of Appeals

1. The judge of the United States District Court may, under the statute, attest judicial proceedings of the Circuit Court.

2. Upon a second trial of a cause before the same court, a bill of exceptions duly filed, containing the substance of the testimony given at the first trial by a witness, since deceased, may be used to show what the testimony of this witness was, and when not so used it is not error to exclude the testimony of the judge who presided at the former trial, as to what the deceased witness testified to.

3. Where no testimony of a deceased party to the suit is before the court, testimony of the opposing party is inadmissible.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

J. D. JOHNSON, for the appellant: The transcript of the judgment sued on was not properly attested.--Wag. Stats. 598, sect. 51; Stephenson v. Banistor, 3 Bibb. 369; Kirkland v. Smith, 2 Mart. 497; Seltse v. Allison, 8 Geo. 201; Smith v. Bloggs, 1 Johns. Ch. 238. The court improperly excluded the testimony of the judge who presided at the former trial.-- Coughlin v. Haeussler, 50 Mo. 126; Mathewson v. Sargent, 36 Vt. 142; Jaccard v. Anderson, 37 Mo. 94. 1 Greenl. on Ev. (13th ed.), sects. 163-165.

THOROUGHMAN & PIKE, for the respondent: The transcript of the judgment sued on was properly certified.--U. S., Rev. Stats., sects. 605, 609, 612; Wag. Stats. 598, sect. 51. The testimony of Jones and the deposition of Wright were properly excluded.-- Coughlin v. Haeussler, 50 Mo. 126.

BAKEWELL, J., delivered the opinion of the court.

This action is upon a transcript of a judgment of the Circuit Court of the United States for the District of Indiana. The transcript offered in evidence had the certificate of the judge of the District Court of the United States for the District of Indiana that John W. Howland was clerk of the Circuit Court of the United States for said district, and that his attestation was in due form. It was objected on the trial that this certificate was insufficient.

We think the certificate sufficient. The statute requires (Wag. Stats. 598, sect. 51) that the certificate shall be by “the judge, chief justice, or presiding magistrate of the court.” Circuit Courts are held by the justice of the Supreme Court allotted to the circuit, by the circuit judge of the circuit, or by the district judge of the district, or by any two of these judges, and may be held at the same time in different districts of the same circuit. U. S. Stats., sects. 605, 609, 612. The district judge is the judge of the Circuit Court within the meaning of the law. It is not the case of a court composed of several judges, one of whom sitting alone cannot hold court. The Circuit Courts have no “chief justice,” nor have they any “presiding magistrate,” within the meaning of the law. The fact that the circuit judge of the circuit presides where two judges sit, does not make him “presiding magistrate” of the court, as might be the case if the organization of the court necessitated the presence of at least two judges for the hearing of any cause.

Defendant offered as a witness the judge of the Circuit Court of St. Louis County who presided at the former trial of the cause, for the purpose of showing that at the former trial defendant and plaintiff's testator both testified; that their testimony was preserved in a bill of exceptions, duly filed; and to prove what defendant testified to at the former trial. The evidence was excluded. Defendant then offered a deposition of defendant Wright, taken since the death of the original plaintiff. The deposition was excluded.

If the former testimony of Corby had been read by plaintiff from the bill of exceptions, Wright's testimony would have been competent ( Coughlin v. Haeussler, 50 Mo. 126) upon the points covered by his former testimony, and so far as his testimony on both trials was the same; and the burden was on plaintiff, according to the authority of the case just cited, to show this agreement of the former and the present testimony of Wright. If the surviving party were free to testify in all respects as if the other party were alive, this would violate the spirit of the statute (Wag. Stats. 1372, sect. 1), because the testimony of the deceased, in explanation or rebuttal of any new matter, can no longer be had. The bill...

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