Giles v. Shaw, 1 Ill. 125, 1 Breese 125 (1825)

Dec. 1825 · Illinois Supreme Court

1 Ill. 125, 1 Breese 125

John Giles, Appellant, v. John Shaw, Appellee.

APPEAL FROM MADISON.

A variance between the record declared on and the one produced in evidence is fatal. ⁽¹⁾

An indorsement of the costs on the back of the record, though signed by the clerk, is no part of the record.

The certificate of the judge, omitting to state that “the attestation is in due form,” is insufficient. ⁽²⁾

(1) As to variances generally, see note to the case of Taylor et al. v. Kennedy, ante, p. 91.

(2) A judgment rendered by a justice of the peace of Wisconsin, was offered in evidence. The clerk's certificate set forth that the person, before whom the judgment purported to have been recovered, was, at the date of the certificate, a justice of the peace, but did not show that he was when the judgment was rendered, and was therefore held to be inadmissible. The certificate of the presiding judge that the clerk’s certificate was in due form of law, would not aid it. Morrison v. Hinton, 4 Scam., 457.

Opinion of the Court by

Justice Lockwood.

This is an action of debt, brought on a judgment recovered in Missouri, to which the defendant pleaded nul tiel record. On the trial, the plaintiff introduced a record of the circuit court of St. Louis county in the state of Missouri, with an attestation of the clerk under the seal of the court. The defendant on the trial, objected to the record on two grounds: 1. Because there was a variance between the record and declaration, in this, that it did not appear from the record what amount of costs had been awarded plaintiff: 2. That the certificate of the judge did not state that the attestation of the clerk was in due form. The court below sustained the objections, and gave judgment for the defendant, to reverse which judgment, the cause is brought into this court.

On the first point, the court are of opinion that the court below decided right in rejecting the record on account of the variance.

It appears by an inspection of the declaration, that the plaintiff in Missouri recovered 115 dollars, for damages, and 19 dollars and 15 cents for costs; the aggregate of which sums is the debt sued for in the court below; but upon the production of the record, it did not appear what sum had been awarded for costs. It however appeared, by an indorsement on the back of the exemplification of the record, that the costs in the suit amounted to the sum mentioned in the declaration. This indorsement did not make the costs a part of the record. Nothing can be considered a part of the record that is altogether detached, and separate from it. From any thing i¡hat appeared, this indorsement might have been made by a person who was not clerk, although his name is signed to it. The seal of the court is always an indispensable requisite to the authentication of all records, out of the court where the judgment is rendered.

Cowles, for appellant.

Blackwell and J. Reynolds, for appellee.

On the second point, the court are of opinion, that the certificate of the judge is insufficient. The act of congress has dispensed with the common law mode of proving foreign judgments, and has prescribed a particular form. This form must be pursued. In the case of Smith v. Blagge, 1 Johnson’s cases, 238, the same objection was taken to the exemplification, as in this case. The court there say, that they “ can not officially know the forms of another state, and therefore they ought to be proved. The act of congress directs the mode of proof, and requires that the presiding judge of the court from which the copy is obtained, shall certify that the attestation is in due form. This not being done, the record is not sufficiently proved.” See also the cases of Ferguson v. Harwood, 7 Cranch, 408, 412; and Drummond and others v. Magruder & Co., 9 Cranch, 122, 125.

The judgment below must be affirmed with costs, ^(a)

Judgment affirmed.

(a) Vide Taylor & Parker v. Kennedy, ante, page 91. Connolly v. Cottle. Rust v. Frothingham and Fort. Prince v. Lamb.

Ho paper writing ought to be admitted as testimony unless it possesses those solemnities which the law requires; its authentication must not rest upon probability but must be as complete as the nature of the case admits. 1 Burr’s Trial, 98.