King v. Scheuer & Brother

105 Ala. 558

• Court: Supreme Court of Alabama
• Decided: November 15, 1894
• Status: Published

Opinion

• McCLELLAN, J.

In laying the predicate for secondary evidence of a paper alleged to be lost, it is incumbent on the party seeking to adduce such evidence “to show that he has in good faith and with reasonable diligence exhausted in his search all the sources of information and means of discovery which the nature of the case naturally suggests and which are accessible to him,” 13 Am. & Eng. Encyc. of Law, p. 1096 ; or, as said by Stone, C. J., “there must be diligent search at every place the paper would be likely to be found.”—Singer Man'f'g Co. v. Riley, 80 Ala. 314; Jernigan v. State, 81 Ala. 58; 1 Brick. Dig. 848, §§ 632, 633.

. The evidence in this case as to the loss of the sheriff’s deed to the plaintiffs does not, in qur opinion, meet these requirements. It was shown that the last timo the "deed was seen it was in the possession of Mr. Dent, who had it for the purpose of preparing a bill of exceptions taken on a former trial of this case — Mr. Dent then being plaintiff’s counsel. In the meantime he had removed to Chicago. No effort was made to get the paper from Mr. Dent, .and no inquiry was addressed to him in respect of it, nor was any search for it made in the office occupied by him in Eufaula at the time he is shown to have had the paper in his possession which was a comparatively brief period prior to this trial.

The circuit court erred in the admission of the certified copy of the deed taken from the registry in the probate judge’s office.

Reversed and remanded.