Sandberg v. State

89 N.W. 504, 113 Wis. 578, 1902 Wisc. LEXIS 83

• Court: Wisconsin Supreme Court
• Decided: March 11, 1902
• Status: Published

Opinion

Dodge, J.

It is not seriously controverted that claimant has established that he is an uncle' of the deceased, Mrs. Armitage, nor that the evidence sufficiently negatives the existence of any other kin of equal or superior proximity, except that of the sister, Sophia Charlotta Sandberg, and her daughter, and the legitimacy of that daughter, and the existence of the six maternal uncles and aunts. Much of the proof' as to all of these persons consists in the introduction of copies of parish registers of births and deaths, kept in the kingdom of Sweden, in accordance with its laws, and offered in evidence upon the trial under a stipulation that they should have the same effect as if the originals had been produced by the proper custodian, and duly sworn to by him. The state seems to contend against the admissibility of these documents, although the grounds of objection are not made entirely clear. If they have any relevancy or materiality, their admissibility would seem to be put beyond doubt by sec. 4160, Stats. 1898, which provides:

“Any church, parish or baptismal record, ... in which record are preserved the facts relating to any birth, marriage or death, including the names of the persons, dates, places and other material facts, may be admitted as prima facie evidence of any fact aforesaid.”

These documents are both church and parish records, and are shown to have been kept pursuant to the law of Sweden, and to be in the legal custody of the person who produced them. True, this statute was not enacted until after the death of Mrs. Armitage, but it had been enacted and was in full force at the time of the trial. Of course, the regulation of procedure and certification of documents for evidentiary purposes is wholly in the hands of the legislature, and is controlled by the law in existence at the time when the evidence is offered. Such statutes neither create nor impair vested rights, nor in any wise affect obligation of contracts. They regulate procedure merely, and speak from their date with reference thereto. Hopt v. Utah, 110 U. S. 574, 590; Thompson v. Missouri, 171 U. S. 380. We therefore need not spend time to consider the admissibility of these documents at common law, nor under our statutes as they existed at some earlier- time. Neither need we be given pause bv the decision of this court in Lavin v. Mut. A. Soc. 74 Wis. 349, which merely decided that a baptismal certificate 'issued in a foreign country and authenticated in accordance with sec. 4172, Stats. 1898, was not admissible under that ■section, for the reason that its terms extended only to certificates of births, marriages, and deaths, and theréfore did not give admissibility to a certificate pf baptism.

Passing from the question of admissibility to the question -of probative force, and postponing for the present that of the identity of the persons, the most serious inquiry is •whether the declaration in the record of the birth of the in■fant, Gunhild, that at the time her mother was a spinster, is •any evidence of illegitimacy. That inquiry turns primarily upon the force of our statute, which, as above quoted, provides that the record shall be •prima, facie evidence of any material fact stated therein, in this respect extending the ^efficacy of such records beyond that accorded them at common law according to many decided cases. The question at ■once arisés under this statute whether the marital status of the mother is a material fact in a birth record. The law pf .■Sweden, which is somewhat imperfectly presented in the record, seems to require a record of all “children, illegiti.mate as well as legitimate, and the names of their parents ■and godfathers and godmothers, . . . with short annotations regarding their burial places, state and capacity, life, and age.” It also authorizes certain officials to provide ■formulas for books which may be considered necessary regarding births, baptisms, deaths, and burials. It thus appears that the laws of Sweden, at least, indicate the importance of preserving in the records the fact of legitimacy and ■illegitimacy. Little, if any, ingenuity is necessary to suggest reasons for materiality, both public and private. Eights •of the individual as against private property and as against •other relatives may well be affected thereby; also its rights ■to local citizenship, protection, or support. Besides this, "the information, for statistical purposes, may be very im-fjortant. The fact that a public officer did, in the perform-anee of Ms duty, enter upon the record the marital status of the mother, and thereby inferentially the legitimacy of the child, strongly suggests, in absence of any negation, the inference that the laws required such entry; and we certainly are unable to say that it is so wholly an immaterial circumstance as to refute that inference. We must conclude that, the fact is within the phrase of our statute, “other material facts,” and therefore that the record prima facie establishes-it. Doubtless, the evidence of the certificate is in conflict with the prima facie presumption of legitimacy which exists-in favor of all children, but the statute declaring the evi-dentiary effect is without force unless it means that the record is sufficient to overcome a mere prima facie presumption. If that presumption were aided by any other evidence, the court should lean to- the conclusion of legitimacy, but of such facts there are none in the present case. The-only other evidence bearing on legitimacy which we have is that about two years after the birth of the child the mother changed her residence from Sweden to the United States, unaccompanied by a husband, and that she then passed by her maiden name of Sandberg. Certainly these circumstances tend rather to confirm her spinsterhood than to refute it. We conclude, therefore, that this record was prima, facie evidence that the child, Guuhild, niece of the intestate, was born while its mother was unmarried, and was therefor© illegitimate. We can indulge in no presumption that thereafter it was legitimated by a marriage between its natural parents, especially in view of the facts shown two years-later, wMch are more consistent with the continued spinsterhood of the mother.

A further question arises and is argued, common to a large number of these records, as to the necessity of evidence other than the records themselves to establish prima facie the identity of the persons named therein with those-whose existence is material in this case. There is a line of authorities wbicb hold that .identity of name alone is always-sufficient to establish prima facie the identity of persons. Jackson v. King, 5 Cow. 231; Green v. Heritage, 63 N. J. Law, 455; Hamsher v. Kline, 57 Pa. St. 397, 403; Goodell v. Hib bard, 32 Mich. 47, 55; Morris v. McClary, 43 Minn. 346; 16 Am. & Eng. Ency. of Law (1st ed.), 119. Appellant contends for the exact converse of this rule, namely, that identity of name is never sufficient alone, but the party producing the record must always offer some independent proof of identity; citing Barber v. Holmes, 3 Esp. 190; Morrissey v. Wiggins F. Co. 47 Mo. 521. Probably neither rule is universal, though the former seems more nearly so according to the weight of authority. In the present case it is not necessary to decide between them, for every record is supplemented by some fact or circumstance in addition to the mere name, although that alone in several instances, we are persuaded, ought to suffice, because of the duplication of rather unusual Christian names, constituting combinations extremely unlikely to occur in different individuals.

The next serious issue is whether the claimant has established the death of the sister Sophia Charlotta Sandberg. To-do this he has offered affirmative proof by a legal death certificate and by the testimony of the attending physician that in 1889 there died in Chicago one Charlotte Sandberg. He has also offered, both as confirmatory of the identity of the person who then died and as affirmative proof, the fact that there was delivered to Mrs. Armitage at about this same time a telegram informing her of the death of her sister in Chicago, which she evidently received as authentic, for she was-very much affected thereby, as the witness who delivered it to her testifies. These are followed or supplemented by testimony of a gentleman who -aided Mrs. Armitage with her correspondence and business, and was in a position, probably, to know if the fact had been otherwise, that he never knew of her receiving any communication from or information of her sister during the rest of her life, a period of something over eight years.

. As to the effect of the proof, undisputed, of the death of a Charlotte Sandberg.in Chicago, there is only the question of identity. It is proved by .the testimony of the attending physician that this woman described herself as of Swedish birth, and as of the same age as Mrs. Armitage’s sister; who, by the way, it is shown commonly passed by the name of Charlotta, instead of Sophia. He also gives a physical description of her, which corresponds in many respects with the physical description given of Mrs. Armitage’s sister by those who were acquainted with her six years before in Jefferson county, and differs in none. Further, the woman who died had a little girl of about the age of Gunhild, and who had certain physical characteristics corresponding with those remembered by her acquaintances in Jefferson county. It is also established that Mrs. Armitage’s sister Charlotta went to reside in Chicago in the latter part of 1883, and so continued for some time thereafter. From these facts we certainly are unable to say that the finding of the court that the woman who died in Chicago was Mrs.-Armitage’s sister is so without support in the evidence that we must set it aside.

The evidence with reference to the death of the six maternal uncles and aunts of Mrs. Armitage is wholly documentary. Their dates of birth were from 1811 to 1826, as appears by the parish records of Enkoping, the place of residence of their parents. Upon the same record where those births are narrated appears the death of three at ages ranging from one to five years. Of the identity of these, obviously, there can be no serious doubt. The death of the eldest aunt, Sophia Johanna Warman, born the 2d of December, 1811, is claimed to be established by the record from another parish, declaring the death of Johanna Sophia Erwall, bom War-man, whose date of birth was identical with that of the aunt. The identity of the person who died with the aunt is not very perfectly established. Tbe identity of tbe two Christian names is, of course, striking, although they are transposed. The exact date of birth is also striking, and., in view of the further consideration that this aunt was born in 1811, and, if alive to-day, must be over ninety years of age, we think the court was justified in reaching the conclusion of her death. To prove the death of the uncle Josef Leontius Warman is offered the record of a Stockholm hospital parish that a person of exactly the same name and of the same age .there died in Eebruary, 1841. In view of the antiquity of these events and coincidence of the three names and the age, 'we think that the identity is sufficiently established. As to the uncle Erans Leonard Warman, born October 1, 1826, at Enkoping, there are offered the records of another parish that a man of the same name, bom the same day at Enkoping,. died June 26, 1866. These three elements of identification — name, date of birth, and place of birth — would seem entirely sufficient.

We therefore reach the conclusion that the trial court was justified in finding with the claimant on all these controverted issues of fact, as also upon the ultimate issue to the effect that he is the only next of kin to the deceased, Mrs. Afmitage, and properly adjudged surrender of the estate to him.

The judgment for recovery of costs against the state is erroneous. No court is authorized to render judgment for costs against the sovereign state, in absence of statute giving express authority. U. S. v. Barker, 2 Wheat. 395; U. S. v. Ringgold, 8 Pet. 150, 163; Stanley v. Schwalby, 162 U. S. 255, 272; State v. Smith, 52 Wis. 134. We find no statute giving such authority. The doubt expressed by Ryan, C. J., in Noyes v. State, 46 Wis. 250, 252, whether general cost statutes might apply against the state in civil actions is readily resolved by reference to the rule that general statutes are not to be construed to include, to its hurt, the sovereign. Dollar S. Bank v. U. S. 19 Wall. 227, 239; U. S. v. Verdier, 164 U. S. 213, 219. The error thus committed in no wise ■affects tbe correctness of tbe judgment in other respects, and ■ean be corrected here. ■

By the Court. — Tbe judgment appealed from, is modified by striking therefrom tbe award of costs, and, as so modified, is affirmed; No costs will be recovered by either party in this ■court.