Stevenson v. Moody , 85 Ala. 33 ( 1887 )

STONE, C. J.

— On February 15, 1888, we announced a decision in this cause, affirming tbe judgment of tbe Circuit Court. Tbat case, with tbe opinion of this court affirming it, is reported in 83 Ala., at page 418. We have since reconsidered tbe case, and have taken back tbe opinion. We, in tbat opinion, said: “Tbe declaration of exemptions would have been admissible in evidence, as an admission of Jane Moody, one of tbe plaintiffs, tbat slie adopted and acted upon the alleged partition, and claimed tbe lands allotted to her, if proof bad been made tbat she signed or verified tbe declaration, or a properly certified transcript of tbe record of tbe Probate Court bad been offered.” We then announced tbat tbe record failed “to show tbat such proof was made or proposed, or tbat such transcript was offered.” It is thus seen tbat we impliedly said, tbat if it bad appeared tbat Mrs. Moody signed and verified tbe claim of exemptions, it would have been competent evidence against her;' or a certified transcript from the Probate Court would equally have been legal evidence.

Looking more narrowly into tbe transcript, we find that tbe claim of exemptions offered purports on its face to have been signed by Mrs. Moody. True, her name is not signed at tbe foot of tbe description of tbe property claimed, but it is signed to tbe affidavit, which asserts and verifies tbe claim. There was then attached tbe official certificate of tbe clerk of tbe probate judge, tbat Mrs. Jane Moody personally appeared before him, &c., and tbat said claim of exemptions was “sworn to and subscribed before” him, giving tbe date and bis official signature. And this was recorded in tbe “record of exemptions of Probate Court of Pike county.” Now, tbe affidavit to tbe claim of exemptions, and tbe registration of tbe claim in tbe probate office, in a book kept for tbat purpose, are each provided for by law. — Code of 1886, §§ 2515 (2828), 2516 (2829). Being provided for by law, they are official acts, and import verity; and certified or authenticated copies of them are evidence. — Code of 1886, § 2788; Dudley v. Chilton County, 66 Ala. 593.

The record statement of the evidence offered and rejected in this case is in the following íanguage: “The defendants offered the following declaration of exemptions of Jane Moody, from the record of exemptions of Probate Court of Pike county, and which court refused to admit, and to which defendant duly excepted.” No ground is stated on which the court’s ruling was based. Under this language, we do not think we are permitted to indulge the presumption, that any question was raised as to the identity or genuineness of the book offered. If that had been the ground, would not the language of the bill of exceptions have been, that they offered what purported to be the record of exemptions ? The language of the bill of exceptions] is, that they offered “the following declaration of exemption of Jane Moody from the record of exemptions,” &c. Is not this an assertion, that the document offered was the declaration of Jane Moody, that it had been recorded, and the offer was from the record of it. In other words, that they offered to prove it by the book of records. "We think the bill of exception precludes the inference that the objection was to the form in which the offer was made.

But, if the objection had been that the original record had been offered instead of an examined, or certified copy — we mean the record admitted or proved to be the recprd required to be made — we are at a loss to perceive how a copy taken from the record can be higher, or more reliable evidence, than the record from which it is taken. We understand the rule of this State to have been long settled, that the original record book, proven or admitted to be such, is original evidence; as much so as a certified copy of it can be. Lawson v. O’Rear, 4 Ala. 156; Canwile v. House, 6 Ala. 710; Miller v. Boykin, 70 Ala. 469; Williams v. State, 68 Ala. 551.

We do not intend to be understood as affirming, that one court, except in special cases, can compel another court to surrender its record for inspection, or for use as evidence. All we decide is, that when such record is thus produced, and admitted, or proved to be what it purports to be, it becomes evidence of equal dignity with a certified copy of the same. Nor is it our intention to question or overturn Ansley v. Carlos, 9 Ala. 973, and cases which followed it. — 1 Brick. Dig. 829, § 348.

Charge 3 asked by defendants ought to have been given, but its refusal was not separately excepted to.

Reversed and remanded.

OLOPTON, J.

— It was not intended, in the former opinion, to gainsay the rule, that the record book, when proved or admitted, is receivable in evidence, whenever a certified transcript therefrom is competent, though it is susceptible of such construction, not having been as clearly and explicitly expressed as it should have been. What we intended, to say was, that the declaration of exemptions was not competent evidence of an admission of the alleged partition, whether the original paper, or original record, or an authenticated transcript was used, without preliminary proof of its execution or verification by Mrs. Moody, or connecting her with it in some way, as by its use, or being instrumental in having it recorded. I dissent from the construction of the statute (§ 2788 of Code, 1886), under which its effect is to make a certified or authenticated transcript from the book, in which the law requires such declarations to be recorded, presumptive evidence, in this or similar cases, of its execution or verification.

Whether the land in controversy was formerly held by the litigant parties as tenants in common, and been partitioned between them, were disputed collateral facts. The declaration of exemptions, tending to show that Mrs Moody occupied and claimed the portion allotted to her as her homestead, was only. relevant and competent as an admission of the partition. There can be no doubt that the statute constitutes a duly certified transcript from the book of exemptions presumptive evidence, to have the same effect as if the original were produced- and proved, in any proceeding in which the claim of exemptions is directly involved; but, in my opinion, its operation should be restricted to such cases. Though the official acts of sworn officers may import verity, such presumption should not be extended so far as to impart to the record itself, in a suit between third persons, competency as evidence of a material and independent fact, which is merely collateral and incidental. I can not suppose that it was the intention of the statute to give the book, in which the declaration of exemptions is recorded, greater probative force than the original — to make the record competent evidence, not only that it is a true copy, but also of the execution of the original, when the original, if offered, would not .be self-proving.