Hyde v. Benson, 6 Ark. 396 (1846)

Jan. 1846 · Arkansas Supreme Court

6 Ark. 396

Hyde vs. Benson.

A!deputy cleric tías n'ír power to aó't officially except’in the name of hh principal,’ and’ unless he discloses the name of his principal, his acts are void.

An authentication of the official character of a judge, before whom (Jepositions Were taken, by a deputy clerk, not disclosing the name of his principal, is insufficient.

If a notice to take depositions- be-'served by the clerk' of the court, under sections 21'y 22,-chapt. 116', Rev. Stat., his r&turn to be entitled’to legal credence and to be'received as evidence of the facts’therein stated, must be'verified by affidavit in'the' same manner as if made by any other person not an officer.

Where notice of taking depositions is given under sec. 7; chapt. 48, Rev.-Stat.,-by pu tting it up in the clerk’s office, the return must show that neither the adverse party nor his attorney of record reside-'in the county where the suit is pending, otherwise; ■ the service^ will be insufficient.

Service of notice to take depositions may be shown by parol evidence.

Sec. 21,-22, chapt. 116, Rev. Stat., as to evidence of service ofnotice' is not mandatory, but directory and does not repeal the common law as to parol evidence'of-ser- ■ vice.

The certifícale of- the clerk that he served a notice' fb-take depositions on the'adverser ,parly, not verified by affidavit,^ insufficient evidence of the service, but this court will presume, in favor of the judgment below, that there was .other evidence of the ■service unless it is negatived by the record.

Writ of error to the circuit court of Hempstead <county.

This was an action of assumpsit by Benson, against Hyde, determined in the circuit court of Hempstead county in November, 1843, before the Hon. R. W. Jonson, special judge. The action was founded upon Hyde’s endorsements of promissory notes to Benson. He pleaded non-assumpsit, upon which issue was taken, the case submitted' to the court sitting as a jury, and finding and judgment for Benson. Pending the trial Hyde’s counsel took a bill of exceptions, from which it appears, that the plaintiff offered to read as evidence in the cause, depositions of several witnesses -taken under one commission, to which defendant objected on the ground that he had not had sufficient notice of the time and place of taking them, but the court permitted them to b.e read. The .commission, depositions, and a notice of the time and place of taking the depositions addressed to defendant, drawn in .the usual form, were made part of the bill of exceptions. Upon the notice was an .endorsement by .the clerk of the court from which the commission issued, that he .had served it upon Hyde by putting it up in the clerk’s office, and filing it with the papers of the cause: that Hyde was a non-resident, and “ had no attorney of record in the .county of Hempstead at the time.” Thei’e was no statement in the bill of exceptions that this was the .only evidence .of the service ,of the notice introduced by Benson.

Hyde took another bill of exceptions, from which it appears that he offered to read .depositions taken in Louisiana before a Parish judge, to which Benson’s counsel objected, upon the ground that there was no sufficient authentication of the official character of ithe judge before whom they were taken, and the court excluded .the depositions.

The certificate ,of authentication was by one Thomas P. Jones, who styled himself deputy clerk .of the Parish court, and signed it as deputy clerk, making no disclosure of the name of his principal.

Hyde brought error.

Pike & Baldwin, for plaintiff in error.

Tra.pnall & Cooke, contra.

■The exception to the depositions of defendant refers merely Ip the sufficiency of the notice, not to the proof of service and thereby, according to well settled principles the sufficiency of the proof ■was admitted. All other objections except the one taken will be presumed to have been waived. Edwards vs. Morris, 2 Marsh. 66. Harper vs. Bell, 2 Bibb. 222.

There are many analogous cases clearly illustrative of the principle, when a c.opy of record from another State is offered in evidence and specific objections made to reading, not involving the sufficiency of the authentication, the court will presume all objection to the authentication was waived. Heeling vs. Fort's adm’r. 2 Lilted 193.

Where a motion to dismiss an attachment was made without any specific objection made, and was overruled, the court will presume, although there are many defects in the attachment, that the motion was for extrinsic causes. Harper vs. Bell, 2 Bibb. 222.

■The bill of exceptions does not state that the certificate of the clerk was all the evidence given, and this court will therefore presume in favor of the judgment of the circuit court that other proof was made. Phillips on Evidence, notes, 3 vol. 791. Woods, Ex parte. -3 Ark. 535. ' The proof of the service is not necessarily a part of the record. Waters vs. Brown, 3 Mash. 558. Jackson vs. Kent, 7 Cow. 63. Wait vs. Whitney, id. 69, and might have been made by parol. Bell vs. Fry, 5 Dana 343.

The endorsement of the bill of exchange was in blank. In such a case the right of action is in the holder, and no new endorsement was necessary. Chiity on Bills, 255-6, and to such a case Block vs. Walker, 2 Ark. does not apply, the asssignment in that case being in full.

The authentication of the plaintiff’s dep.osition was nol sufficient. Buddicum vs. Reck, 3 Cranch. 293. Evans vs. Eater-, 5 P. C. R. 312. 6 Bac. Abr. H. 150. White vs. Johnson, 1 Marsh. 159. 1 Gov. & Hughes' Dig. 487.

A deputy cannot act or certify in his own name but only in the name of his principal. 5 Bac. Abr. II. 150. Slaughter vs. Barnes, 3 Marsh. 413.

Cross J., not sitting.

Oldham J.,

delivered the opinion of the court.

Two questions are presented by the record in this case. 1st, Did the circuit court err in rejecting the depositions offered in evidence by the plaintiff in error; and 2d, Were those offered by the defendant in error properly permitted to be read in evidence to the j-uiy-

1. The depositions on the part of the plaintiff in error were ex-, eluded because the official character of the judge, before whom they were taken was authenticated by the “deputy clerk,” without disclosing the name of his principal. The statute provides that when depositions shall be taken within any of the United States or Territories thereof, the official character of the judge, justice of the peace, or other judicial officer before whom the same shall be taken, shall be authenticated and proved by the certificate and seal of the clerk of any courl; of record within any county of the State or Territory where such officer resides. Rev. Stat. 326, sec. 16. A deputy has no power to act officially except in the name of his principal, and unless he discloses the name of his principal his acts are void. The official character of the officer before whom the depositions were taken, was not authenticated according to the requisitions of the statute, and they were consequently, properly rejected by the .circuit court.

The solution of the. remaining question likewise depends upon the statute. The plaintiff in error contends that he had no notice of the time and place of taking the depositions. The distinction taken by the defendant between the notice and proof of notice is wholly untenable. In the case of Williams vs. Brummell, 4 Ark. R. 129, the objections urged against the depositions were the same as in this case, the defendant contending that he had received “no sufficient notice” of taking them, there being no legal service; and the court decided that there was no notice.

The act, which provides for the taking of depositions does not specify by whom th'e notice shall be served, .or how the fact of service shall be manifested to the court; but by the Revised Statutes, chapt. 116, secs. 21, 22, it is enacted that -“whenever in the commencement or progress of .any suit it shall be necessary to serve .any notice on either party to such suit, such notice may be served either first by any officer .authorized by law to serve original pro,-.cess in the court in which such suit is to be brought or may be pending, or served by any person who would be a competent witness upon the trial of such suit: that such notice may be served in like manner as a writ of summons, and the return of such notice made by-an officer, or when made by any other person and verified by affidavit shall be received as evidence of the facts therein stated subject to be repelled by contrary proof.” No officer is authorized by law to serve original process in the circuit courts, except th.e sheriff, his legal deputy and the coroner, in certain cases where the sheriff cannot act; therefore, if a notice to take depositions be served by the clerk of the court, his return, to be entitled to legal credence and to be received as evidence of the facts therein stated, must be verified by affidavit in the same manner as if made by any other person not an officer. It is not an act appertaining to his official duties, and his certificate is evidence of but one fact, the filing of the paper in his office which is an official act, but in all other respects it is no higher evidence than the certificate of any other person who would be a competent witness on the trial of the ,cause. If the return thus made by the clerk had been verified by affidavit, it is defective and insufficient in another respect. Actual personal notice cannot be dispensed with, and constructive notice substituted in lieu of it, only in cases where “neither the adverse party, nor his attorney of record resides in the county where the suit is pending. The certificate does not state that the attorney of record did not reside in the county, but that the defendant “had no atorney of record in the county at that time.” If the certificate made by the clerk was the only evidence of service before the court, the depositions should hávebeen rejected.

But it is contended by the defendant in error that, inasmuch as the record does not show that the certificate of the clerk was the only evidence of service, this.court, in aid of the judgment of the circuit court, will presume that there was other a-nd.sufficient legal-evidence of service. At first view it would seem that inasmuch as the statute has presented the manner in which notices may be served and what return shall be received as evidence of the fact, that no other evidence is admissible to establish the fact of service except the return of an officer or that of a person not an officer verified by affidavit. But we regard the provisions of the statute not as mandatory but' directory, not to be explicitly followed to the exclusion of every other kind of evidence, except the return specified in the act. At common law, m the.absence of any statutory provision on the subject, whenever it is necessary to give notice to-either party during the pendency of any suit, parol evidence is admissible to establish the fact of service, and the statute by specifying another mode of establishing that fact, did not thereby make it compulsory upon parties to adopt that mode of proof to the exclusion- of that Authorized by the commoh law, but left it to the discretion of /fíe parties to pursue either mode. By adopting the statutory means of evidence, it is not necessary for the person who may have served the notice to attend the court- from day to day as a witness in'the cause to establish the fact of service, but his return verified by his affidavit is sufficient for that purpose; but it is otherwise if the common law mode of proof is adopted.

Under this view of the statute we are of opinion that parol evidence is admissible tó establish the fact of a service of notice to take depositions, and that inasmuch as1 the record does not show that the certificate of the clerk w-as the only evidence, of that fact on the trial- in the circuit court,- this court is bound to presume in favor of the judgment of that court, that other competent testimony was-introduced establishing the fact of service before the depositions were permitted to be read to the. jury.