Zimmerman v. Helser

• Decision Date: 07 March 1870
• Citation: 32 Md. 274
• Parties: JOHN ZIMMERMAN v. SOLOMON HELSER.
• Court: Maryland Court of Appeals

32 Md. 274

JOHN ZIMMERMAN v. SOLOMON HELSER.

Court of Appeals of Maryland

March 7, 1870

APPEAL from the Circuit Court for Washington County.

This action was brought by the appellee against the appellant, who resided in Franklin county, Pennsylvania, to recover the value of a certain lot of rye. In May, 1862, an execution was issued to the sheriff of Franklin county, Pennsylvania, out of the Court of Common Pleas of said county, at the suit of Thomas P. Weller against Jacob Myers and the appellant, and levied upon a lot of rye then in a mill in said county. The rye was so levied upon as the property of Myers, at the instance of the appellant, who gave a bond of indemnity to the sheriff. The rye was sold by the sheriff and purchased by the appellant. The appellee was present at the sale on the 12th of June, 1862, claimed the rye as his, and gave notice that whoever bought it, would purchase a law suit.

The narr. contained two counts--one in trover, and the other in trespass de bonis asportatis. The defendant pleaded the general issue.

First Exception: The plaintiff, after introducing evidence to show his title to the rye, offered in evidence a certified copy of the record of a judgment of the Court of Common Pleas in Franklin county, Pennsylvania, entitled John Zimmerman vs. Jacob Myers, on which was an entry of satisfaction, signed by the plaintiff; and in connection with it, offered to prove by William Adams, a member of the bar of Pennsylvania, the provisions of the Statute law of that State, respecting the manner in which judgments could be confessed before, or taken by, justices of the peace, and for what amounts and in what form. The defendant objected to the record as evidence because it was not duly certified to according to law, and because the same was irrelevant; to the parol proof as inadmissible, because the provisions or contents of any Statute of that State could only be proved by the production of a certified copy of such Statute, or from a printed volume purporting to contain the laws or Statutes of the State; and further, because said proof was irrelevant. The Court overruled the objection and allowed the proof as offered to go in; the defendant excepted.

Second Exception.--The witness, Adams, having proved that, in Pennsylvania, judgments can be entered or confessed before justices of the peace for any amount, and without any pleadings, and certified copies thereof sent to the Court of Common Pleas of the counties, and there recorded, the plaintiff offered in evidence the certified copy of the judgment in question; the defendants objected to the introduction of said paper as irrelevant and inadmissible for any purpose under the issue in this case, but the Court overruled the objection and allowed said paper to be given in evidence upon an assurance by his counsel that the plaintiff would follow it up, by proof, that the note of $200 mentioned therein as given as security to Thomas P. Weller was the foundation of another and subsequent judgment in said Court against Jacob Myers; but the defendant still objected. The Court overruled the objection, and the defendant excepted.

Third Exception: The plaintiff having rested, the defendant proceeded with his proof, and, after the rebutting testimony was in, the defendant's counsel moved the Court to withdraw from the jury the record that had gone in by permission of the Court, and excepted to in his second exception, on the ground that the plaintiff had not followed it up with the proof, of which his counsel had given assurance to the Court, but this the Court refused, on the ground of the agreement of F. M. Kimmell, thereon written, he having been counsel in the case on the former trial, that the same, if admissible in evidence in the suit, might be read as though it had been legally certified. The defendant excepted.

Fourth Exception: The defendant then, to rebut any inference which might be drawn by the jury from said record gave in evidence a certified record of the judgment in the Court of Common Pleas in Franklin county, and the fieri facias thereon, under which the rye in controversy was seized and sold by the sheriff; and also offered, in connection with said record, a letter from Jacob Myers, one of the defendants in said judgment, to the appellant, the other defendant, dated 20th of December, 1860, to show that the consideration or cause of action for which said judgment was given was fair and correct, and so acknowledged by Myers, and to repel any unfavorable inference which the jury might draw from the entry of satisfaction on the judgment in evidence by the plaintiff, and what was stated by his witness, Mr. Adams, in relation thereto. Proof of the handwriting of Myers, and of the genuineness of the letter was also offered. The plaintiff objected, and the Court refused to allow said letter and...