Burnell v. . Weld

76 N.Y. 103, 1879 N.Y. LEXIS 465

• Court: New York Court of Appeals
• Decided: January 21, 1879
• Status: Published

Opinion

Rapallo, J.

We think that the record of the judgment of the Supreme Judicial Court of Maine on which this action is brought is a complete judgment record, and that it shows that the court acquired jurisdiction of the persons of the defendants by their voluntarily appearing and defending. We should affirm the judgment in the present action but for a defect in the exemplification of the copy of the record of .the Maine judgment which was admitted in evidence on the trial of this action. Objection to its admission having been taken specifically on the ground of that defect, we cannot ignore it. The defect consists in the want of a proper certificate of a judge of the court, authenticating the attestation by the clerk, of the copy of the record, as prescribed by the act of Congress. The copy of the record purports to be attested by Daniel P. Atwood, clerk, under the seal of the court. Following the copy thus attested and attached thereto is a copy of an execution. This copy execution is in like manner attested by the same clerk under the seal of the court, and immediately following this paper and attached thereto is a certificate of the chief justice of the court, to the effect- that Atwood is the clerk of the court and that “ the foregoing signature purporting to be his is genuine, and that the seal thereto by him affixed is the seal of the said Supreme Judicial Court and that the foregoing attestation is in duo form of law. This certificate speaks of but one attestation, one seal and one signature. There is nothing in its language .applying it to the attestation attached to the judgment record. On the contrary as it immediately follows the attestation attached to the copy execution and refers to the “ foregoing ” attestation, its literal meaning is that the last preceding attestation is genuine and in due form. The two .attestations bear different dates, and are entirely distinct, the attestation immediately preceding the certificate bearing the latest date and the certificate bearing no date. We can.not change the language of this certificate from the singular to the plural. Although it is probable that all the papers wore attached together when the certificate was signed and that the omission to refer to both attestations was an oversight, we have no power to supply the omission. Tho defect being insisted upon, we have no alternative but to order a new trial on that ground though it may ho of little avail to the appellant, his other points being overruled.

The judgment is reversed and a now trial ordered, costs to abide the event.

All concur, except Church, Ch. J., and Earl, J., dissenting.

Judgment reversed.