Knowlton v. Knowlton

Supreme Judicial Court of Maine

Knowlton v. Knowlton

24 A. 847, 84 Me. 283, 1892 Me. LEXIS 82

DecidedFebruary 4, 1892

StatusPublished

This text of 24 A. 847 (Knowlton v. Knowlton) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Knowlton v. Knowlton, 24 A. 847, 84 Me. 283, 1892 Me. LEXIS 82 (Me. 1892).

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Opinion

Peters, C. J.

In this action the plaintiff declares on a judgment alleged to have been recovered by him against the defendant, in 1867, before Robert Groodenow, Esquire, a trial justice, now deceased. To enable him to introduce secondary evidence of the contents of the alleged record, it became necessary to first prove that the original had been destroyed or lost. Two places would naturally be suggested as necessary to be searched for the missing record. One is the county clerk’s office; because the statute requires that all official papers of a trial justice shall be deposited after his death by his executor or administrator in such office. But the record could not be found [284]*284there. The next inquiry would be of the executor or administrator of the deceased justice. The case does not inform us whether there is or ever was any administration upon his estate. But the plaintiff was allowed to produce as evidence the following-affidavit: "I, Lucy B. Goodenow, of Farmington, Maine, on oath depose and say : That I am a daughter-in-law of the late Robert Goodenow of said Farmington. That I have in my custody none of the papers of said Robert Goodenow.

" That I have heretofore made diligent search for the records kept by him of his proceedings as a trial justice and have been unable to find the same. That if said records were in this State I would be likely to know it. That I have no personal knowledge of their whereabouts, but they are undoubtedly in the hands of some one out of the State. Lucy B. Goodenow.”

This affidavit, instead of proving the records lost, proves the contrary, and that "they are in the hands of some one out of the State.” There is in this document a very positive intimation that Mrs. Goodenow knows where and in whose hands the papers are. Now the plaintiff is not excused from further search merely because the papers are shown to be out of the State. Due search requires that he produce them or show a reasonable excuse for his failure to do so. Until that be done proof of their contents cannot properly be received. Whctr. Ev. § 180, and cases in note. Here the deficiency of proof is not supplied, nor is it in any way legally excused.

Judgment for defendant.

Walton, Virgin, Emery, Foster and Haskell, JJ., concurred.

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Peters, C. J.

In this action the plaintiff declares on a judgment alleged to have been recovered by him against the defendant, in 1867, before Robert Groodenow, Esquire, a trial justice, now deceased. To enable him to introduce secondary evidence of the contents of the alleged record, it became necessary to first prove that the original had been destroyed or lost. Two places would naturally be suggested as necessary to be searched for the missing record. One is the county clerk’s office; because the statute requires that all official papers of a trial justice shall be deposited after his death by his executor or administrator in such office. But the record could not be found [284]*284there. The next inquiry would be of the executor or administrator of the deceased justice. The case does not inform us whether there is or ever was any administration upon his estate. But the plaintiff was allowed to produce as evidence the following-affidavit: "I, Lucy B. Goodenow, of Farmington, Maine, on oath depose and say : That I am a daughter-in-law of the late Robert Goodenow of said Farmington. That I have in my custody none of the papers of said Robert Goodenow.

" That I have heretofore made diligent search for the records kept by him of his proceedings as a trial justice and have been unable to find the same. That if said records were in this State I would be likely to know it. That I have no personal knowledge of their whereabouts, but they are undoubtedly in the hands of some one out of the State. Lucy B. Goodenow.”

This affidavit, instead of proving the records lost, proves the contrary, and that "they are in the hands of some one out of the State.” There is in this document a very positive intimation that Mrs. Goodenow knows where and in whose hands the papers are. Now the plaintiff is not excused from further search merely because the papers are shown to be out of the State. Due search requires that he produce them or show a reasonable excuse for his failure to do so. Until that be done proof of their contents cannot properly be received. Whctr. Ev. § 180, and cases in note. Here the deficiency of proof is not supplied, nor is it in any way legally excused.

Judgment for defendant.

Walton, Virgin, Emery, Foster and Haskell, JJ., concurred.

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24 A. 847, 84 Me. 283, 1892 Me. LEXIS 82, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knowlton-v-knowlton-me-1892.