Midgett v. . Nelson

192 S.E. 854, 212 N.C. 41, 1937 N.C. LEXIS 232

• Court: Supreme Court of North Carolina
• Decided: September 22, 1937
• Status: Published

Opinion

DeviN, J.

The appellant assigns as error the admission in evidence, over its objection, of the certificate of the State Commissioner of Insurance authenticating the bond of defendant Basnight. C. S., 1779, renders competent copies of all official bonds filed or recorded in any public office when certified by the keeper of such records under the seal of his office. The certificate, which was here offered in evidence with the bond, was as follows:

“I, Dan C. Boney, Insurance Commissioner in and for the State of North Carolina, do hereby certify that the attached is a true and correct copy of the Schedule Bond covering all State officers and employees, and which bond includes coverage upon John A. Nelson, as Fisheries Commissioner, in the sum of $5,000 from 9 June, 1931, through the present date, and which is still in force; and also includes Thomas A. Basnight, Assistant Fisheries Commissioner, in the sum of $1,000, covering from 1 October, 1935, which bond is still in force.

“In testimony thereof, I have hereunto set my hand and affixed my official seal at the city of Ealeigh, this the seventeenth day of September, A.D. 1936. DaN C. BoNey,

Insurance Commissioner.”

The copy of the bond, which appears in the record, does not contain a schedule of the names of officials or employees bonded, nor the amounts thereof, nor the duration of the bond, and the only reference to the defendants in connection therewith is that contained in the certificate of the Insurance Commissioner. This manifestly goes beyond the office of the certificate of genuineness which is authorized to be attached to a copy of a public record or official bond, and contains statements of material matters which do not appear in the paper certified. The certificate was, therefore, incompetent to prove the facts and conclusions therein stated in addition to and apart from the writing itself. Wiggins v. Rogers, 175 N. C., 67; S. v. Champion, 116 N. C., 987.

For this there must be a new trial. The appellant’s motion for judgment of nonsuit cannot be allowed. Though the court below, in denying the motion, acted upon evidence which we now hold to be incompetent, yet, if this evidence had not been admitted, the plaintiff might have followed a different course. Morgan v. Benefit Society, 167 N. C., 262 (top p. 267).

The demurrer was properly overruled. The allegations of the complaint, admitted by the demurrer and taken in the light most favorable to the pleader, could not be overthrown unless wholly insufficient. Leach v. Page, 211 N. C., 622.

The other questions presented by the record and debated on the argument with reference to the construction and legal effect of the paper writing upon which liability was sought to be imposed upon the appellant, cannot be determined until all the provisions of the bond are properly before the court.

New trial.