Evans v. District Court of Fifth Judicial District of State

• Decision Date: 13 November 1930
• Docket Number: 5630
• Citation: 50 Idaho 60,293 P. 323
• Parties: J. PAUL EVANS, Plaintiff, v. THE DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, Hon. RALPH W. ADAIR, Judge of Said Court, Presiding, and Hon. C. A. COON, Clerk of Said Court in and for Power County, Defendants
• Court: Idaho Supreme Court

293 P. 323

50 Idaho 60

J. PAUL EVANS, Plaintiff, v. THE DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, Hon. RALPH W. ADAIR, Judge of Said Court, Presiding, and Hon. C. A. COON, Clerk of Said Court in and for Power County, Defendants

No. 5630

Supreme Court of Idaho

November 13, 1930

COURTS-JUDGMENTS-COURT RECORDS-APPEAL AND ERROR-EXHIBITS-PROHIBITION-APPLICATION FOR WRIT-COURT RULES.

1. Demurrer admits matters set forth in return to alternative writ of prohibition.

2. Judges have control of records so far as essential to proper administration of justice.

3. Judge, if necessary, may refuse to permit withdrawal of original judicial records and may require reading of original exhibits into record, or introduction of certified copies (C S., sec. 6886, subd. 4).

4. Strict technical record of action or judgment is "judgment-roll" (C. S., sec. 6901).

5. Judgment-roll, files, papers and orders in case are "judicial records" within statutes (C. S., sec 6886, subd. 4; secs. 6901, 7943, 7948).

6. In broad sense, register of actions, files, minutes, orders decree, judgment, judgment-book and docket are "judicial records" (C. S., sec. 7948).

7. Copies made by court reporter of original papers, files and judgment-roll should be transmitted on appeal with other exhibits, where introduced under stipulation that court reporter might make and certify copies (C. S., sec. 6886 subd. 4, secs. 6901, 7943, 7948).

8. Question whether court reporter copied and certified papers not introduced in evidence in case pending on appeal could be properly postponed until hearing of appeal, and therefore would not be determined in prohibition proceeding (C. S., secs. 7259, 7268).

9. Failure to serve application for prohibition upon real parties in interest did not warrant quashing writ or striking application, but merely called for postponement until reasonable notice was given (Rule 61 of Supreme Court).

Original proceeding for a writ of prohibition. Alternative writ heretofore issued quashed.

Alternative writ of prohibition quashed. Costs to defendants.

F. M. Bistline, for Plaintiff.

Bissell & Bird and A. Humphrey, for Defendants.

VARIAN, J. Givens, C. J., and Budge, Lee and McNaughton, JJ., concur.

OPINION

VARIAN, J.

Original proceeding to prohibit defendants, as district judge and clerk of the district court, respectively, from transmitting to this court certain copies of exhibits in a case entitled J. Paul Evans v. Power County et al., an action to quiet title, pending on appeal from the district court of the fifth judicial district in and for Power county. The petition alleges that certain papers were copied and certified by the court reporter as exhibits in said action, contrary to the provisions of C. S., sec. 6886, subd. 4, and therefore the defendants are without jurisdiction to transmit said copies of exhibits to this court on said appeal, and that the district judge is without jurisdiction to order transmitted, or the clerk to transmit, any documents or papers not introduced at the trial of said action. On filing the petition, an alternative writ of prohibition issued, to which defendants filed their return setting up in substance and effect that the exhibits consist of original papers, files and judgment-rolls in certain actions theretofore tried in said district court, which were introduced in evidence under an agreement that, in case of an appeal being had, the court reporter might make and certify copies thereof. Attached to the return are the separate affidavits of defendants and the affidavit of Earl H. Weaver, court reporter, setting up matters that occurred after the trial in relation to the procuring of the reporter's transcript, and the interpretation placed by counsel for plaintiff (who also represented the plaintiff in the case now pending on appeal) upon the stipulation, in letters to the court reporter requesting him to copy and certify the exhibits, and agreeing to pay said plaintiff's proportion of the reporter's charges therefor.

Plaintiff demurred to the return, and also moved to strike the affidavit of the court reporter upon the ground that there is no statutory provision for filing supporting affidavits with the answer and return to an alternative writ of prohibition, and that the same is contrary to Rule 64 of this court. In view of the conclusions arrived at, it is unnecessary to consider plaintiff's motion to strike.

The character of the exhibits and the manner of their certification are not questioned, and the demurrer admits the truth of the matters set forth in the return (50 C. J., p. 705, sec. 126; State v. Stutsman, 24 N.D. 68, Ann. Cas. 1914D, 776, 139 N.W. 83; State v. Guthrie, 245 Mo. 144, 149 S.W. 305), so that the only question of fact relates to the charge that the court reporter has copied and certified exhibits not introduced in evidence. The other questions presented are questions of law.

C. S., sec. 6886, subd. 4, reads:

"Exhibits introduced in the trial may be certified to the supreme court by the clerk without incorporating the same in the transcript, or making any copies, unless said exhibits consist of some part of the public records, in which event the same shall be copied into the record at the appropriate place by the reporter, or a copy certified by the party having lawful custody of the records may be substituted and transmitted with the exhibits."

Plaintiff first contends that these exhibits are not "public records" within the purview of this statute.

"A judicial record is the record or official entry of the proceedings in a court of justice, or of the official act of a judicial officer, in an action or special proceeding." (C. S., sec. 7948.)

Judges of courts of record have control of the records of the court, so far as may be essential to the proper administration of justice. (Houston v. Williams, 13 Cal. 24 (27), 73 Am. Dec. 565; 15 C. J., p. 974, sec. 392; 22 Cal. Jur., p. 583, sec. 8.) And if deemed necessary for the proper administration of justice, the district judge may refuse to allow original judicial records to be taken from their legal custodian and filed as exhibits in other actions being tried, and may require the reading of the original exhibits into the record, or the introduction of copies certified by the custodian in the manner provided by statute or in any manner agreed upon by the parties, and even without certification, if so agreed. Of course, it is permissible for the trial judge to allow the introduction of original records with the understanding that proper copies shall be subsequently substituted, provided the originals themselves are not taken from the possession of their custodian. (See Seay v. Yarborough, 94 N.C. 291 (293); 34 Cyc., p. 596.)

It has been said that the code contemplates, or requires, a variety of written memorials, such as a register of actions (C. S., sec. 7232), files, minutes, orders, decree, judgment, judgment-book (C. S., sec. 6899), and docket (C. S., sec. 6903), all of which are required to be kept by the clerk together with other papers and records. (See 5 Cal. Jur., p. 225.) In a broad sense, all of these are judicial records. (See 22 Cal. Jur., p. 581.) The papers and files that constitute the judgment-roll are enumerated by statute (C. S., sec. 6901), and the strict, technical record of an action or judgment is the judgment-roll. (Hahn v. Kelly, 34 Cal. 391 (422); Sichler v. Look, 93 Cal. 600, 29 P. 220 (221).) The judgment-roll, files, papers and orders in the case, whether included in the judgment-roll or not, are judicial records. They are public writings under C. S., sec. 7943, and public records within the purview of C. S., sec. 6886, subd. 4. (See 34 Cyc., pp. 585, 586.) It is contemplated by the code that these records of a court of record permanently remain in the custody of the clerk, subject to control by the court. (15 C. J., p. 974, sec. 392; 34 Cyc., p. 596.) Therefore, the originals should not be transmitted with the other exhibits on appeal to this court, but, in the absence of any agreement, they must be copied into the transcript by the court reporter, or copies thereof, certified by the clerk, substituted for said originals and sent up with the other exhibits to the appellate court. It appears from the record before us that counsel, in the case on appeal, stipulated that the court reporter might copy and certify the original exhibits, in lieu of the clerk copying and certifying them.

Stipulations that copies of documents may be used as evidence in lieu of the originals have been generally upheld by the courts. ( Coffey v. City of Carthage, 200 Mo. 616, 98 S.W 562; Curl v. Watson, 25 Iowa 35, 95 Am. Dec. 763; 25 R. C. L., p. 1103, sec. 11.) Parties may stipulate to introduce in evidence unauthenticated copies in lieu of authenticated copies. (Levy v. Rich, 106 La. 243, 30 So. 377.) And stipulations concerning the admissibility of documentary evidence are generally upheld. (36 Cyc., p. 1287; Folts v. Globe Life Ins. Co., (Neb.) 119 Neb. 143, 227 N.W. 455; Lawson v. Steinbeck, 44...