Stevenson v. Moody

• Decision Date: 28 June 1888
• Citation: 85 Ala. 33,4 So. 595
• Parties: STEVENSON ET AL. v. MOODY ET AL.
• Court: Alabama Supreme Court

4 So. 595

85 Ala. 33

STEVENSON ET AL. v. MOODY ET AL.

Supreme Court of Alabama

June 28, 1888

Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge.

On rehearing. For statement of facts, see former opinion, 3 South. Rep. 695.

P.O. Harper, for appellants.

M N. Carlisle, for appellees.

STONE C.J.

On February 15, 1888, we announced a decision in this cause affirming the judgment of the circuit court. That case, with the opinion of this court affirming it, is reported in 83 Ala. 418, 3 South. Rep. 695. We have since reconsidered the case, and have taken back the opinion. We, in that opinion said: "The declaration of exemptions would have been admissible in evidence as an admission of Jane Moody, one of the plaintiffs, that she adopted and acted upon the alleged partition, and claimed the lands allotted to her, if proof had been made that she signed or verified the declaration, or a properly certified transcript of the record of the probate court had been offered." We then announced that the record failed "to show that such proof was made or proposed, or that such transcript was offered." It is thus seen that we impliedly said that, if it had appeared that Mrs. Moody signed and verified the claim of exemptions it would have been competent evidence against her; or a certified transcript from the probate court would equally have been legal evidence. Looking more narrowly into the transcript, we find that the claim of exemptions offered purports on its face to have been signed by Mrs. Moody. True, her name is not signed at the foot of the description of the property claimed, but it is signed to the affidavit which asserts and verifies the claim. There was then attached the official certificate of the clerk of the probate court that Mrs. Jane Moody personally appeared before him, etc., and that said claim of exemptions was "sworn to and subscribed before" him, giving the date and his official signature; and this was recorded in the "record of exemptions of probate court of Pike county." Now, the affidavit to the claim of exemptions, and the registration of the claim in the probate office in a book kept for that purpose, are each provided for by law. Code 1886, §§ 2515, (2828), 2516, (2829.) Being provided for by law, they are official acts, and import verity; and certified or authenticated copies of them are evidence. Code 1886, § 2788; Dudley v. Chilton Co., 66 Ala. 593. The record statement of the evidence offered and rejected in this case is in the following language: "The defendants offered the following declaration of exemption of Jane Moody from the record of exemptions of probate court of Pike county, and which court refused to admit, and to which defendant duly excepted." No ground is stated on which the court's ruling was based. Under this language, we do not think we are permitted to indulge the presumption that any question was raised as to the identity or genuineness of the book offered. If that had been the ground, would not the language of the bill of exceptions have been that they offered what purported to be the record of exemptions? The language of the bill of exceptions is, that they offered "the following declaration of exemption of Jane Moody, from the record of exemptions," etc. Is not this an assertion that the document offered was the declaration of Jane Moody, that it had been recorded, and the offer was from the record of it? In other words, that they offered to prove it by the book of records? We think the bill of exception precludes the inference that the objection was to the form in which the offer was made. But if the objection had been that the original record had been offered, instead of an examined or certified copy,-we mean the record admitted, or proved to be the record required to be made,-we are at a loss to perceive how a copy taken from the record can be higher...