Adams v. Stenehjem
| Citation | 146 P. 469,50 Mont. 232 |
| Decision Date | 30 January 1915 |
| Docket Number | 3460. |
| Parties | ADAMS v. STENEHJEM. |
| Court | Montana Supreme Court |
Appeal from District Court, Sheridan County; Frank N. Utter, Judge.
Action by O. O. Adams against A. O. Stenehjem, as administrator of the estate of G. C. Meltzer, deceased. From a judgment for defendant, plaintiff appeals. Affirmed.
Norris Hurd & McKellar, of Glasgow, for appellant.
Paul Babcock, of Plentywood, and J. A. Heder, of Medicine Lake for respondent.
This action was instituted to recover a balance due upon a judgment rendered by a district court of North Dakota.
Upon the trial, plaintiff offered in evidence a certified copy of the judgment roll from the North Dakota court, but it was excluded upon the ground that it was not exemplified as required by law. Plaintiff then had the original files constituting the judgment roll identified, and these were received in evidence, but afterwards stricken out. A motion for nonsuit was sustained, and from the judgment rendered and entered plaintiff has appealed. Errors are predicated upon the rulings of the trial court in excluding the offered papers.
1. The copies of the papers constituting the judgment roll were attested by the clerk with the seal of the court annexed, and following his attestation there was a certificate by the judge:
"That said certificate of said clerk of said district court is duly authorized by law to be issued by said J. O. Seibert, as such clerk of said district court, and full faith and credit are due to all his official acts as such."
Section 1, art. 4, of the Constitution of the United States provides:
In compliance with that mandate, the Congress in 1790 enacted what is now section 905, U.S. Revised Statutes, as follows:
"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, * * * together with a certificate of the judge, chief justice or presiding magistrate, that the said attestation is in due form."
Section 7911, Revised Codes of Montana, declares that a judicial record of a sister state may be proved by the attestation of the clerk and the seal of the court annexed, together with a certificate of the chief judge or presiding magistrate that the attestation is in due form. The phrase "in due form," as thus employed, means in the form prescribed by the law or practice of the state from which the record comes.
Tested by these statutory provisions, the trial court's ruling upon the first offer was correct. To entitle the copy of the judgment roll to be admitted in evidence, it must have been duly attested by the clerk of the North Dakota court. Whether the attestation was in the due form prescribed by the law or practice in North Dakota could not be determined by the trial court from an inspection of the attestation certificate; for the courts of this state do not take judicial notice of the statute laws or practice of a sister state. Because of this fact the trial court was required to look to other evidence, and the evidence which the federal statute and our own Code have provided is the certificate of the judge of the sister state. It is for that judge, charged with knowledge of the laws of his state, to determine whether the attestation of the clerk is in due form and to evidence his conclusion by his certificate, and it is to his certificate alone that the Montana court must look to ascertain whether what purports to be a certificate by the clerk is such under the laws of the state where made. Craig v. Brown, F. Cas. No. 3,328. Under the federal statute and our Code provision above, the district court of the sister state is required to make known the fact that the copy is properly attested, by his certificate "that the said attestation is in due form." In the absence of such certificate as the federal statute and our Code prescribe, the copy is not entitled to be admitted. This rule is recognized universally. Northwestern Mut. Life Ins. Co. v. Stevens, 71 F. 258, 18 C. C. A. 107; Smith v. Brockett, 69 Conn. 492, 38 A. 57; Trigg v. Conway, F. Cas. No. 14,172.
But it is insisted that, while the certificate of the judge of the North Dakota court...
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