Miller v. Johnston

• Decision Date: 10 January 1903
• Citation: 72 S.W. 371,71 Ark. 174
• Parties: MILLER v. JOHNSTON
• Court: Arkansas Supreme Court

72 S.W. 371

71 Ark. 174

MILLER v. JOHNSTON

Supreme Court of Arkansas

January 10, 1903

Appeal from Crawford Circuit Court, JEPTHA H. EVANS, Judge.

Reversed and remanded.

Judgment reversed and cause remanded for new trial.

Peirce & Southmayd for appellant.

Questions not raised on former appeal and commented upon are not binding on the trial court. 2 Enc. Pl. & Pr. 371; 52 Ark 474. The by-laws of New York Stock Exchange were improperly admitted. 2 Cook, Corp. § 714; 2 Rice, Ev. 899; Taylor Corp. § 263; Field, Corp. § 391; 12 Wheat. 74; Ind 319; 13 N.H. 535; 6 Wend. 656; 42 Cal. 465; 13 Ill. 516; 38 La. 871; 66 Me. 100; 6 Cush. 279; 1 Doug. 282; 14 Minn. 43; 1 How. (Miss.) 479; 27 N. N. Law, 424; 36 N.H. 45; 2 Mill (S. C.) 213; 4 Rand. (Va.) 578; 76 Tex. 461; 51 Ga. 120; 7 Ark. 118; 26 Ark. 164; 35 Ark. 75; 5 P. 702. Judgment should have been for the appellant. Mech. Ag. 364; Story, Ag. §§ 203, 332; 38 N.J.Eq. 229; 3 S.W. 152; 110 U.S. 499. The transaction was contrary to law. 47 Ark. 194; 110 U.S. 511. And the appellee is a particeps criminis. 110 U.S. 499; 155 Ill. 617; 56 Ark. 300; 15 F. 774.

Oscar L. Miles, for appellee.

The appeal is for delay. 5 Ark. 118; 10 Ark. 9; 58 Ark. 125. A judgment, right upon the whole case, will not be reversed. 4 Ark. 525; 14 Ark. 114; 10 Ark. 53; 44 Ark. 556; 19 Ark. 677; 43 Ark. 296; 46 Ark. 542. The questions raised have been adjudicated. 67 Ark. 177; 9 Ark. 530; 44 Ark. 383; 55 Ark. 609; 56 Ark. 170; 60 Ark. 50. The appellant was not prejudiced by the admisssion of evidence. 149 U.S. 483.

WOOD J. BUNN, C. J., and BATTLE, J., dissent.

OPINION

WOOD, J.

This is the second appeal in this case. The opinion of this court on the first appeal is found in 67 Ark. 172, where the issues are fully stated.

Appellee, it appears, was a member of the New York Cotton Exchange, and as such bought and sold cotton for appellant, and brought this suit to recover of appellant for services and money expended in buying and selling cotton for him under the charter and rules of the New York Cotton Exchange. Appellant defends mainly upon the ground that the transaction had with appellee was a dealing in futures and contrary to law. The cause was heard by the judge sitting as a jury.

To maintain the issues on his part, appellee introduced his own deposition, in which occurs the following: "Int. 4. In buying and selling cotton what rules, if any, govern your transactions? Ans. The rules of the New York Cotton Exchange govern all my transactions. Int. 5. If you state that your transactions are governed by the rules of the New York Cotton Exchange, please attach to your deposition a copy of those rules as an exhibit. Ans. Have attached to this deposition a copy of the by-laws and rules of the New York Cotton Exchange." Then follows a number of interrogatories and answers thereto showing the nature of the transaction.

To the introduction of each of the interrogatories numbered 4, 5, etc., and the answers thereto, the appellant, at the time same were offered to be read in evidence, objected, on the ground that they were based upon the rules of the New York Cotton Exchange, which rules were incompetent and irrelevant, and for the further reasons that said rules had not been properly proved. Exceptions were saved to the overruling of the objection, and this is made one ground of the motion for a new trial.

The court should have excluded the purported copy of the rules of the New York Cotton Exchange, and all the questions and answers based upon said rules. The rules being in writing, and it being doubtless inconvenient or impossible to produce the original, it was proper to prove same by an examined or authenticated copy. But nothing short of such copy was competent. The statement of the witness that "he attached a copy of such rules to his deposition" fell far short of showing that the document or book so attached was a copy of such rules. The statement was but the opinion or conclusion of the witness, without a statement of the facts upon which such opinion was based. The law in such cases requires a statement of facts from which the court or jury may see that the document is a copy. Supreme Lodge K. of P. v. Robbins, 70 Ark. 364, 67 S.W. 758.

There is nothing here to show that the document or book purporting to be a copy was taken from the original in the hands of the proper custodian. The witness does not show that he had compared the paper purporting to be a copy with the original. There is nothing to show an examined copy. Mr. Greenleaf says: "The proof of records by an examined copy is by producing a witness who has compared the copy with the original, or with what the officer of the court or any other person read as the contents of the record. * * * It should appear that the record from which the copy was taken was found in the proper place of deposit, or in the hands of the officer in whose custody the records of the court are kept. And this cannot be shown by any light reflected from the record itself, which may have been improperly placed where it was found. 1 Gr. Ev. § 508.

It is true that Mr. Greenleaf here refers to court records, but the same principle applies to the records of a corporation. They are usually kept by a secretary or other official of the corporation, upon whom devolves the special duty and are kept in a room or place where the corporation has its office. But it may be said that, inasmuch as the witness testified that he attached a copy, the appellant, if not satisfied that such document was a copy, or if he desired to know the facts upon which the witness based his conclusion, should have ascertained the source of witness' information on cross-examination when the deposition was being taken. But not so. The burden was on appellee to prove the copy before it was competent testimony. The certificate of E. R. Powers, on the fly leaf of the book purporting to be the rules of the New York Cotton Exchange, that "this is a true copy of the charter and by-laws of the New York Cotton Exchange" was not sufficient to prove the copy. Powers was not a witness. It is not shown by any witness that he was the superintendent of the New York Cotton Exchange, nor that, as such superintendent, it was his duty to keep the records of the New York Cotton Exchange, nor that he was familiar with the rules of the New York Cotton Exchange, nor that he knew this to be a copy thereof, after having examined...