Wilburn's Administrator v. Hall

16 Mo. 426

• Court: Supreme Court of Missouri
• Decided: July 15, 1852
• Status: Published

Opinion

RylAND, Judge,

delivered the opinion of the court.

The questions arising in this case, involve the propriety of the decision of the court below, in rejecting the paper A., being a transcript from the records of the Probate Court of Dallas county, in the State of Texas ; also, in rejecting the paper B., purporting to be an assignment of a note, by Robt. Wilburn, administrator of the estate of Edward Wilburn, deceased, to one John McCarty.

The defence set up by the defendant in his answer, depending, mainly, upon the existence of facts, which these papers were offered to establish, upon the rejection of them, had noth-' ing to sustain it. It becomes necessary, then, to consider ‘the act o£ the court in excluding these papers, with'- a view of its importance to the rights of the litigants.

1. The paper marked A., which'the defendant offered, and which was rejected, purported to be a transcript of the record of certain proceedings in the Rrobate Court of Dallas county, in the State of Texas. This transcript was, in the opinion of this court, properly excluded as evidence, because it was not legally authenticated under the act of congress. The certificate of the Chief Justice and Judge of County Court within and for the county of Dallas, and State of Texas, “ is defective in an important particular ; it omits to contain the averment that the attestation of the clerk, who certifies the transcript of the record, is in due form.” See Duvall v. Ellis, 13 Mo. Rep., 203.

The rejection of this paper necessarily produced the rejection of the paper B. There is, then, no error in the act of the court in thus excluding these papers.

The defendant relied upon the fact, that, although these papers were not properly authenticated, so as to be evidence of themselves, yet, as they had been filed by John McCarty’s counsel among the papers and records of the suit brought by him upon the same note on which this suit is founded, against the same defendant, the defendant now had a right to use them as evidence against the present plaintiff. We see no force in this position. If the defendant in the McCarty suit, failed to avail himself of what was a fatal objection to the introduction of the paper A. in evidence in that action, it was at his own option; he had his object in view, and in all probability he turned it to his own advantage. But this by no means authorizes him now to read this very paper with its imperfect authentication, or rather without any authentication, ’ in the present action, wherein a totally different plaintiff appears upon the record. In every view of the case, then, there is no error in refusing permission to defendant to read these papers. The question then, about the right of an administrator of an estate in another state, to assign or transfer a promissory note, so as to authorize the assignee to sue in this state, in his own name, is not varied by the record of this case, and is not now before this court. The answer of the defendant admits the making of the note and mortgage sued on in this case, and does not pretend that the debt has been paid. It is the opinion of this court that the judgment of the court below should be affirmed, with damages, at the rate of ten per cent, thereon.

The judgment below is accordingly affirmed, with ten per cent, damages — the other Judges concurring herein.