Thomas v. Tanner
| Decision Date | 22 October 1827 |
| Citation | 22 Ky. 52 |
| Parties | Thomas and Wife v. Tanner. |
| Court | Kentucky Court of Appeals |
Error. Practice. Evidence. National Law. Authentication. Executors. Sheriff's Sales. Bona Notabilia. Jurisdiction. Exceptions.
APPEAL FROM THE LIVINGSTON CIRCUIT; B. SHACKLEFORD, JUDGE.
Mayes for appellants.
Crittenden for appellee.
This was an action of detinue, for sundry slaves, brought by Tanner against Thomas and wife, in the circuit court. The declaration, as originally drawn, contains two counts, in each of which, Tanner claims the slaves as administrator of John Tanner deceased, under a grant of administration to him with the will annexed, by the county court of Cape Girardeau in the state of Missouri, in 1821, and in the first count, he declares upon the possession of the testator, John Tanner, but in the second count he declares upon his own possession as administrator, & c.
Declaration by Tanner, on the possession of his testator, and on his own former possession.
Non detinet was pleaded by Thomas and wife, and the trial was had in the circuit court on an issue taken to that plea.
Plea, non detinet and issue.
The jury found for Tanner, the slaves, Simon of the value of $450, Bet, of the value of $600, Kate, of the value of $350, and Amy of the value of $350, being part of those mentioned in the declaration, and assessed his damages for the detention of them, to $320; but the jury failed to find as to the other slaves named in the declaration.
Verdict for plaintiff.
The court rendered judgment in favor of Tanner, for the slaves, Simon, Bet, Kate and Amy, if to be had, and if not to be had, for seventeen hundred and fifty dollars, their value, and also for three hundred and twenty dollars, the damages assessed by the jury, together with his cost.
Judgment.
From that judgment, Thomas and wife appealed.
Various opinions were given by the court, on points of law, made in the course of trial; to each of which, exceptions were taken, and each will be noticed in the order they occur in the record.
A certified transcript of the will of John Tanner deceased, with the probate thereof, taken in July, 1812, by the judge of probates, for the then district of Cape Girardeau, and territory of Louisiana, together with the letters of administration, with the will annexed afterwards, in 1821, granted by the county court, for the county of Cape Girardeau, state of Missouri, taken from the records in the office of that county court, was offered in evidence to the jury by Tanner, objected to by Thomas and wife, the objections overruled by the court, and the transcript admitted to be used as evidence. After this decision by the court, and before the transcript was read to the jury, Thomas and wife moved the court to dismiss the cause because Tanner had not filed an authenticated copy of the order, granting letters of administration; but before the court decided upon the motion, Tanner entered a nole prosequi to the second count of the declaration. Thomas and wife then asked for leave to file an additional plea, but the court refused to permit them to do so.
Decision of the court overruling objections to evidence can not be assigned for error, unless it appear the evidence was in fact given to the jury.
It will be perceived at the first glance, that it is altogether unnecessary for us to go into the inquiry, whether or not the court was correct in deciding the transcript from the records of the county court in Missouri to be admissible evidence; for it appears from the record, not to have been read to the jury, and if not used as evidence, Thomas and wife can have sustained no possible injury by the decision, even were it admitted to be erroneous.
Lest it should, however, be supposed, that we entertain the opinion that the court erred in its decision, we have thought proper to remark that no solid objection to the transcript being used as evidence is discerned. The authentication is in due and apt form, and lacks no essential ingredient to authorize copies from the records of the courts of other states to be used as evidence. The only possible objection, which could, with any plausibility be taken to it by the most ingenious counsel, consists in the failure of Tanner to prove, that by the laws of Missouri, the records of the former territorial judge of probates, for the district of Cape Girardeau, were, on the change of government, transferred to the clerk of the county court, and that the clerk of that court was authorized to keep them. It may be said, that the courts of this country can not take judicial notice of the laws of other states, and as the authority to keep and give out copies of records, must be derived from the laws of the state where the record is, it may be argued that without evidence going to prove, that by the laws of Missouri, the person by whom the copy is attested, had authority to keep the record, of which it purports to be a transcript, and to make out copies, the court should not have permitted it to be used as evidence. But the fallacy of the argument is at once perceived, when we advert to the consequences to which it would inevitably lead. The same argument that goes to show the necessity of proving an authority by law to keep records, would also show the necessity of proving that the court of another state, by whom a judgment is rendered, was authorized by the laws of that state, to give such a judgment, so that if the argument be sound, instead of admitting as evidence, copies from the records of the courts of other states, when authenticated according to the laws of the United States, we should in every case where such a copy is offered in evidence, have to require of the party before it is used, the almost impossible task, of not only producing every provision of the laws of the state from whence the copy is brought, that may be necessary to prove the authority of the keeper of the record, but also such as may be necessary to show the authority of the court, before whom, the proceedings designed to be proved by the record were had. An argument leading to such consequences, can not be sustained by this court.
Transcript of the records of the court of probate of wills and testaments of the Missouri Territory, certified since the establishment of the state (according to the act of Congress), by the officers of the county court where the record purports to be kept, is competent evidence, without proof of the laws of the state.
With respect to the application of Thomas and wife, to dismiss the cause, because a copy of the order granting letters of administration to Tanner, was not filed, nothing need be said, after the remarks which have been already made. A regularly authenticated copy had been presented to the court as evidence, and whether filed or not, Thomas and wife had as full opportunity afforded them to inspect it, as if actually filed with the clerk. Besides the jury had been sworn before the application was made to the court, and we apprehend, it was then too late for Thomas and wife to avail themselves of the provisions of the act of the legislature, which requires non-resident executors and administrators, to file their letters testamentary, or letters of administration, with the clerk of the court in which suit is brought by them.
It is too late after the jury is sworn, to move to dismiss the suit of a non resident executor, because he had not filed his letter testamentary.
The same remark, as to the time, applies with equal force to the refusal of the court, to allow Thomas and wife to file an additional plea. Their application to do so, was made after the jury were sworn, and the trial was progressing, and of course, at a time when the court possessed no power to admit additional pleas.
No additional plea can be filed after the jury is sworn.
The nolle prosequi, which was entered by Tanner to his second count, is a matter of which Thomas and wife have no right to complain. The law gave Tanner that privilege; and it is one, that by no possibility could be used to the prejudice of Thomas and wife, unless we suppose it a prejudice to them, for Tanner to discontinue his cause as to part of the slaves claimed of them in his declaration.
Plaintiff may enter a nohe prosequi as to one count, or any part of his action.
Tanner also offered as evidence a copy of a law purporting to have been enacted in 1807, by the then Secretary of Louisiana, who, at the time, was exercising the government thereof, and the judges of the territory, certified by the secretary of the now state of Missouri, to be a true copy from the original, remaining on file in his office, together with the great seal of the state of Missouri thereto attached, to the reading of which as evidence to the jury, Thomas and wife objected, but their objection was overruled and the copy read.
Laws of the Territory of Missouri, not inconsistent with the new government?? were not changed by the establishment of the state. In the revolutions of governments by violence or otherwise, the laws of persons and things not inconsistent with the new constitution, remain as before, till altered by the new public authority.
In argument, no objection was pointed out, to the mode in which the copy is authenticated, and we have been unable to discover any to exist. But, admitting the authentication to be unexceptionable, and admitting the copy to be admissible to prove what the law of the territory was, it was contended that by the change of the...
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