Hudkins v. Bush, Beceivek.

• Decision Date: 18 April 1911
• Citation: 69 W.Va. 194
• Court: West Virginia Supreme Court
• Parties: Hudkins v. Bush, Beceivek.

69 W.Va. 194

Hudkins

v.Bush, Beceivek.

Supreme Court of Appeals of West Virginia.

Submitted March 2, 1910.

Decided April 18, 1911.

1. Evidence Clerk's Certificate Proof.

A mere certificate by a clerk that by an order of his court a certain person had been appointed a receiver, is not admissible to prove, and does not prove, such appointment, (p. 195),

2. Receivers Actions Against Proof of Operation of Railroad by Receiver,

In an action against a receiver of a railroad company to recover damages for killing cattle by a train, it must be proven that the railroad was being operated by a receiver, (pp. 196, 197).

Error to Circuit Court, Bandolph County.

Action by B. Hudkins and others against B. F. Bush, receiver of the Western Maryland Bailroad Company. Judgment for defendant, and plaintiffs bring error.

Affirmed.

Talbott & Hoover and W. B. Maxwell, for plaintiffs in error.

Benjamin A. Richmond and E. A. Bowers, for defendant in. error.

Brannon, Judge:

B. Hudkins and W G. Hudkins brought an action of trespass on the case against B. F. Bush, receiver of the Western Maryland Railroad Company, to recover damages for killing some cattle on the railroad track, and the court, on motion of the defendant, excluded the plaintiff's evidence and directed a verdict for the defendant, and on such verdict gave judgment for the defendant, and the plaintiffs sued out a writ of error.

At the start we come across the question of the appointment of the receiver. The only evidence thereof is a paper called a certificate of facts, if we can say that even that is a part of the record. It is a paper by which S. B. Harrison, clerk of the Circuit Court of the United States, certifies that by an order entered of record Bush was appointed receiver of "all the lands, properties, railroads, franchises and premises embraced in and covered by a certain mortgage given by the Western Maryland Railroad Company to secure bonds." There is no copy of the order of appointment of a receiver. All the books seem to say that this is necessary. Before the statute dispensing with proof of incorporation, where a corporation was sued or suing, its existence must have been proven. Such was the common law rule. Central Land Co. v. Calhoun, 16 W, Va. 362, pt. 7; Graves v. Turnpike Co., 4 Rand. 578. Why should not a receiver prove his appointment? The paper we have is only the opinion of Harrison as to the effect of the order, his construction of it. The best evidence of a document is the document itself speaking for itself to the court. This paper is not even secondary evidence, and is wholly abortive to prove the appointment. Dickinson v. Railroad Co., 7. W. Va. 390; Anderson v. Nagle, 12 Id. 98, 112; Rowe v. Town, 45 Id. 785. The general issue put in contest each and every material allegation of the declaration. If Bush was not receiver, there was no liability on him as such. His liability as such was one of the elements of the case. It is hardly worth while to advert to the old rule that where a record attests a fact that record must be produced. It or a copy, not of the whole record, but of the order of appointment, is the best evidence and must be produced. Beach on Beceivers, § 703; 10 Encyclopedia of Evidence 659.

Then another question occurs. Some receivers have power of operation, some have not, dependent on the terms and powers given by the order of appointment. Even that certificate of facts does not answer this question. Was this receiver in the actual operation of this railroad and liable as such? It does not appear that such were his powers or liabilities.

And then again, was not the burden on the plaintiff's to show that the train which did the injury was a train in the hands of the receiver and operated by his servants? All the declarations against railroads for injuries of this kind charge that the railroad on which the misfortune occurs is the property of a given company, and that...