Draughan v. Tombeckbee Bank

3 Stew. 54

Opinion

By JUDGE COLLIER.

To sustain the replication, the record of the Circuit Court, and a certificate of the reversal, from the clerk of this, to the clerk of the Circuit Court,in usual form, was the only proof offered; upon the sufficiency of which the opinion of the Courtis asked.

T¡le only proof of a record is the production of the original, ora copy; no evidence of an inferior grade, when these are in existence, will be received.

Footnotes

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a

The rejoinder put in issue, not only the existence of a judgment in the Circuit Court, but its reversal here. The first fact was made manifest by the production of the record remaining- in that Court; but that the other fact, which was equally essential to the right of recovery of the defendant in error, might appear, it was necessary to have produced a copy of the record of this Court-. Without the production of that evidence, it could not legitimately appear to the Court but that, the judgment theretofore rendered for the same cause of action, was still iu force. The certificate of the Clerk of this Court cannot be viewed as a part of the record; in making up the final record of a cause, his duly ¡loes not require him to register- it. It is true, that it is an official act; but it is one intrusted to him alone, without the agency of the Court; and is designed as a mere direction lo the clerk of the Court below, that he may know what disposal has been made of a cause brought from his Court here.a

Again, a record is exclusive as evidence, and cannot receive extrinsic aid; it must appear from inspection, that the record pleaded is the one offered in proof; hence the necessity of producing a copy of the record of this Court, that by a comparison with the record remaining in the Court below, the cause of action may be indentified. This could not be done by the certificate, which shews only the names of the parties and the disposal of the cause here, without reciting the cause of action, or the amount of the judgment. To have supplied those deficiencies, a copy of the record of this Court was indispensable.

For the insufficiency of proof, the judgment below must be reversed, and the cause remanded.

Reversed and remanded.

•Tudofs Sapfold and Lipscomb, not sitting.

1 Stark. 150. 3 Stark. 1276.

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Laws of Ala. 481.