Hite v. Lenhart

7 Mo. 22

• Court: Supreme Court of Missouri
• Decided: May 15, 1841
• Status: Published

Opinion

Opinion of the Court by

Tompkins, Judge.

Godfrey Lenhart and Robert Barber, composing the firm of G. Lenhart & Co., commenced a suit by attachment in the circuit court of St. Louis county, against John J. Yarn-urn, and attached ceitain goods, which Qrmsly Hite claiming as his own, commenced this suit to obtain them. In the 32d section of the act to provide for the recovery of debts by attachment, it is provided, that any person claiming the goods attached may interplead. Hite, claiming these goods, is then plaintiff in the secondary action against Lenhart & Co., plaintiffs in the original action against Varnum. Hite, plaintiff in this action, to try the right of property in the attached goods, offered in evidence the copy of a deed of assignment under which he claimed, the original being left in Kentucky, because his attorney thought the copy of a deed recorded and duly authenticated would be received in evidence in the courts of this State. The deed was certified under the seal of his court by the clerk of the county court of. Jefferson county, in the State of Kentucky, to be truly copied, and the presiding justice of that court appears to have made the certificate required by the act of Congress of 26th May, 1790, to give records and judicial proceedings of that court such faith and credit in the courts of this State as they have by 3aw or usage in the courts of Waiving the question, whether the copy of this deed is the thing intended by the act of congress, to be received in evidence under the authority of this act of congress, the counsel of the plaintiff, Hite, has not shown on his bill of exceptions what faith and credit such acopy,by the laws or usages in the courts of Kentucky, would have in that State. statute law of Kentucky should have been spread upon the record. It is however more usual to enter an agreement on record, that such parts of the statute of a neighboring State may be read from the printed copy: this has not been done. The plaintiff also moved for a new trial on the ground of surprise, having lately come to the State: he was unacquainted with the statute law, and thought such copy was evidence under the statute. Surprise in matter of fact, when due diligence has been used, may be good cause for a new trial, but notin matter of law. Because if due gence be used, counsel cannot he surprised in matter of law. The judgment of the circuit court is therefore affirmed.

of Cg“ate will _ not ex-of tjje sistor when due dimay be good new^triahbut not surprise matter of law.