Steinke v. Graves

• Decision Date: 26 February 1898
• Docket Number: 867
• Citation: 52 P. 386,16 Utah 293
• Court: Utah Supreme Court
• Parties: THEODORE G. STEINKE, RECEIVER, APPELLANT, v. M. N. GRAVES, RESPONDENT

52 P. 386

16 Utah 293

THEODORE G. STEINKE, RECEIVER, APPELLANT, v. M. N. GRAVES, RESPONDENT

No. 867

Supreme Court of Utah

February 26, 1898

Appeal from the Second district court, Weber county. H. H. Rolapp Judge.

Action by Theodore G. Steinke, receiver of the Cass County Bank against M. N. Graves on a note. Plaintiff was nonsuited, and appeals.

Reversed and remanded.

Frank Pierce, for appellant.

In general, all ministerial duties which the principal has a right to perform, may be discharged by a deputy. This is a common-law rule. 5 A. & E. Enc. 624; Wright v Langenour, 55 Cal. 280 (282), citing 4 Cal. 188; Jobson v. Fennell, 35 Cal. 711; Miller v. Mayor of New York, 109 U.S. 385; the Confiscation cases, 87 U.S. 111; Rose v. Newman (Tex.), 80 Am. Dec. 648, and cases cited in note; Note, 41 Am. Dec. 169; Muller v. Boggs, 25 Cal. 175; Roberts v. People, 13 P. 630.

A public officer may delegate to a deputy the right to subscribe the name of his principal, and the act of the deputy in the name of the principal within the scope of his authority, is the act of his principal. Abrams v. Ervin, 9 Ia. 87; Triplett v. Gill (Ky.), 7 J. J. Marsh 438 (440); Com. v. Arnold (Ky.), 3 Litt. 316; Hope v. Sawyer, 14 Ill. 254 (257); Ellison v. Stephenson (Ky.), 6 T. B. Mon. 271, at p. 276, under-clerk and deputy distinguished.

A state may have a more liberal law on the subject of attestation of foreign records than that prescribed by congress. Black on Judgments, Sec. 876; Parke v. Williams, 7 Cal. 247; Ellis v. Ellis, 55 Minn. 401; Bean v. Loryea (Cal.), 22 P. 513; Carpenter v. Ritchie (Wash.), 28 P. 380; Kingman v. Cowles, 103 Mass. 283.

That a state court may construe its own statute on that subject more liberally, follows naturally.

C. F. Loofbourow, Rogers & Evans, and A. G. Horn, for respondent.

It is a familiar rule that before a copy of a record of the court of a sister state is admissible in evidence it must affirmatively appear that it is authenticated in the mode provided by the statute; and the statute must, in this respect, be strictly followed. Smith v. United States, 5 Peters 292; West Jersey Traction Co. v. Board of Public Works (N. J. L.), 38 At. Rep. 581; Block v. United States, 7 Ct. of Cl. 406; Kansas Pac. Ry. Co. v. Cutler, 19 Kas. 83; Morris v. Patchin, 24 N.Y. 394; Lothrop v. Blake, 3 Pa. St. 483 (495); Sampson v. Overton (Ky.), 4 Bibb. 409; Donohoo v. Brannan (Tenn.), 1 Overt 327.

ZANE, C. J. BARTCH and MINER, JJ., concur.

OPINION

ZANE, C. J.:

This action was instituted to recover $ 3,491.40, alleged to be due the Cass County Bank upon a promissory note executed by M. N. Graves, the defendant. The plaintiff alleged in his complaint that he was duly appointed receiver of the bank, with authority to take possession of its assets, collect all indebtedness when due, and to bring and prosecute all necessary suits in so doing, and that he duly qualified, and entered upon his duties as such receiver. The defendant filed an answer containing general denials of all the essential allegations of the complaint. On the trial of the case the note sued on was admitted in evidence, and the plaintiff offered in evidence a transcript purporting to be a copy of a record of the district court of Cass county, Iowa, showing his appointment and qualification as such receiver, to which the following certificates were attached:

"State of Iowa, Cass County--ss.: I, Ambrose Pellett, clerk of the district court of the state of Iowa within and for said county, do hereby certify that the above and foregoing is a full, true, and complete copy of the record of the appointment of the receiver in the above-entitled cause, the official bond of said receiver, the written oath of office sworn to by him, as full, true, and complete as the same remains on file in my office. In witness whereof, I have hereunto set my hand and fixed the seal of the district court this 25th day of July, A. D. 1894. Ambrose Pellett, Clerk. W. H. McConville, Deputy. [Seal District Court.]"

"State of Iowa, Cass County--ss.: I, Walter I. Smith, a judge of the district court in and for the Fifteenth judicial district of said state, composed of the counties of Audubon, Montgomery, Cass, Fremont, Mills, Pottawattamie, Shelby, and Page, do hereby certify that Ambrose Pellett, Esq., who has given the preceding certificate, was at the time of so doing the clerk of the state of Iowa in and for Cass county, in said district court duly qualified as such; that he is the proper custodian of the records of said court, and the proper officer to give such certificate; and that the same is in due form of law. Witness my hand at Atlantic, Iowa, this 26th day of July, 1894. Walter I. Smith, Judge of the Fifteenth Judicial District."

"State of Iowa, Cass County--ss.: I, Ambrose Pellett, clerk of the district court of the state of Iowa in and for the county, do hereby certify that the Hon. Walter I. Smith, who gave the preceding certificate, was at the time of so doing a judge of the district court of the state of Iowa in and for the 15th judicial district, composed of the counties of Audubon, Montgomery, Cass, Fremont, Mills, Pottawattamie, Shelby, and Page, duly commissioned and sworn, to all whose acts as such full faith and credit are and ought to be given. In testimony whereof, I have hereunto set my hand and affixed my seal of said court at Atlantic the 26th day of July, 1894. Ambrose Pellett, Clerk of the District Court of Cass County, Iowa. W. H. McConville, Deputy. [Seal of District Court.]"

Defendant's counsel objected to the admission of the transcript in evidence, because it did not appear to be sufficiently authenticated. The principal objection to the authentication was that the certificates of the clerk did not appear to have been signed by him, that his signature appeared to have been signed by a deputy. The objection was sustained by the court, and a nonsuit was granted, and an exception taken by the plaintiff. The certificate purported to have been made by the clerk, and was signed, "Ambrose Pellett, Clerk," and under his name was written "W H. McConville, Deputy." The seal of the district court was also attached. This certificate to the record purporting to have been made by the clerk of the court was followed by a certificate of the judge of the court in which he stated that Ambrose Pellett, who gave the certificate, was at the time of so doing "the clerk of the state of Iowa in and for Cass county, in said district court, duly qualified as such; that he was the proper custodian of the records of said court, and the proper officer to give such certificate; and that the same was in due form of law." Following the judge's certificate is another certificate of the clerk to the official character of the judge, and this is signed, "Ambrose Pellett, Clerk of the District Court of Cass County, Iowa," and under this is written the name, "W. H. McConville, Deputy," and to this certificate is also attached the seal of the court. The signature of the clerk does not purport to have been signed by the deputy, and the judge, in effect, states in his certificate that the certificate of the clerk to the transcript was given by Ambrose Pellett, clerk of the court; that he was the custodian of the records of the court, and the proper officer to give the certificate; and that it was in due form of law. But, conceding the clerk's name was signed to the certificate by his deputy, the question arises, was the copy of the record sufficiently authenticated? In such case we must assume that the judge knew the clerk of his own court and his deputy, and that he meant to state that the certificate of the clerk, with his name signed to it by the...