United States v. Merriam

2 D. Haw. 428

• Court: District Court, D. Hawaii
• Decided: January 25, 1906
• Status: Published

Opinion

Dole, J.

The petition herein and the alternative writ of mandamus were demurred to on the ground that they did not state facts sufficient to entitle the plaintiff to the relief in said petition 'and writ prayed for, the first point being “That a “certified copy of that certain judgment of condemnation entered on to-wit, the 14tli day (of July), A. D. 1905, of that “certain proceeding for condemnation as in paragraph first of “said petition set forth, is not made a part and attached to said “petition.”

The alleged refusal of the respondent to perform his legal duty and not the judgment referred to, is the basis of this action. This being the case, it is not necessary that the words of the judgment should be set forth in the petition. Bernard v. Cafferty, 77 Mass., 10, 11; People v. Ransom, 2 N. Y., 490, 496.

The second point is, “That it does not appear from said petition wherein or how the said judgment so recovered as in said “petition set forth and particularly by the 5th paragraph “thereof was ‘duly and regularly and properly certified by the “ ‘clerk of this Court.’ ”

“The very term, certified copy, imports that it was an ofiiee copy, so certified, and must be so presumed to be here.” Doremus v. Smith, 4 N. J. L. 160, 161.

“ ‘To certify’ means to testify to a thing in writing, and the statute does not prescribe any particular form of certification.” State v. Brill, 59 N. W., 989, 990-1; Kipp v. Dawson, 60 Id., 845, 846.

These authorities apply directly to this point. No form of certificate is provided by the statute; the certificate of a clerk of a court making the judgment is an official certificate and must be so presumed. In the words, of the petition quoted by the demurrer, to-wit, “duly and regularly and properly certi“fied by the clerk of this Court,” the words “duly and regularly “and properly” may be regarded as unnecessary and surplusage, for if the allegation had been merely “certified by the clerk of “the court,” it would have been sufficient.

The third point is as follows: “That it does not appear from “said petition wherein or how the United States of America “through its agents thereunto duly authorized/ did in every re- “ ‘spect comply with the said laws of the Territory of Hawaii “ ‘required of persons presenting instruments for record.’ ”

The case of Shively v. Pennoyer, 27 Oreg., 33, 36, cited by respondent, decides that in an application for the purchase of land, where the statute provides that such application shall be accompanied by an affidavit of the applicant to the effect that he is eighteen years old and a citizen of the United States; that he has not made any previous purchase of lands from the State which, together with the lands applied for exceed three hundred and twenty acres; that the purchase is for personal use and not for speculation, and that no agreement has been made for the disposal thereof in case the application is granted; the averment that “plaintiff made a written application in the “ ‘manner prescribed by law’ ” was “a conclusion of law, and “not a statement of facts from which the court can determine “its sufficiency.” This authority does not dispose of the question on this point before the court, inasmuch as the requirements of law for the registry of the judgment obtained under the statute of Eminent Domain of this Territory are that a certified copy of such judgment shall be filed in the office of the Registrar of Conveyances and the statutory fees paid for the registration thereof. The petition alleges that a “copy of such “judgment so recovered as aforesaid, duly and regularly and “properly certified by the clerk of this Court,” was offered to the respondent for record, and that “the fees for such recording “required by the laws of the Territory of Hawaii to be paid” were tendered at the same time. The further allegation of the petition, to-wit, that the plaintiff “did in every respect comply “with the said laws of the Territory of Hawaii required of persons presenting instruments for record,” was unnecessary and may be regarded as surplusage after the other allegations referred to, as the latter cover the whole ground and allege performance of all the requirements of the statutes for the record of judgments made under the law of Eminent Domain.

The last point is as follows: “That it does not appear from “said petition that on the first of August, A. D. 1905, it was “the duty of this respondent, either by virtue of law or fair “inference therefrom to receive the said certified copy of the “judgment in said cause for record.”

The conditions necessary for the record having been alleged as performed, the law required him to admit the instrument for record.

The demurrer is technical, there appearing, in my opinion, no allegations in the petition that the respondent may not and should not answer.

The demurrer is overruled on all points.

The respondent may have five days in which to m¿ke further answer or plea.