Schwartz v. Baird & Levi , 100 Ala. 154 ( 1893 )

McCLELLAN, J.

This action is prosecuted by Baird & Levi against Hannah L. Schwartz on an open account for the price of goods, wares and merchandise sold and delivered by them to her. To the general issue was added a plea of coverture. To this special plea the plaintiffs replied that when the goods were sold to the defendant she was engaged in the mercantile business and that she had the consent of her husband, Louis L. Schwartz, expressed in writing, for her to engage in and carry on business in her own name as if she were a feme sole; and that said consent was filed and recorded in the office of the judge of probate of Jefferson county as required by law. Issue being taken on this replication, the plaintiffs offered in evidence a copy of what purports to be a written consent of and signed by Louis L. Schwartz to his wife, the defendant, engaging in business as if she wére a feme sole, &o., &c., which is certified by the probate judge as a true and correct transcript from the records of his office. The defendant objected to this evidence on two grounds only : “1st. Because the same is secondary evidence, the non-production of the original not being accounted for. 2nd. Because said paper purporting to be of file and record in the probate office had no certificate of acknowledgment of the signature of Louis L. Schwartz, and was not entitled to record in the probate office and no faith and credit could attach to same.” The answer to the first objection is that this paper is required by law to be “filed and recorded” in the office of the probate judge, or, in other words, to be “kept” by that officer and transcribed on the records of his office. Code 2350, and a certified copy of it is therefore admissible in evidence whenever the original would be competent unless the court on motion requires the production of the original.—Code, § 2788. The second objection is equally untenable. The gist of it is that the paper was not entitled to be filed and recorded in the probate office because it bore no certificate of acknowledgment of execution, and therefore no faith and credit could attach to the certified copy. It is sufficient to say in reply to this that the statute does not require a certificate of acknowledgment as a condition precedent to the filing and recording of this paper in the office of the probate judge.—-Code, § 2350. Probably the law should be changed in this respect, but we deal with it as it is. If there were other objections to this evidence, they are to be taken as waived, and if it did not support the replication the point is not raised on this record. No charge was given or refused so far as is disclosed here which asserted or denied that plaintiffs had made out their case.

The objections to the introduction of the account are without merit. The statements set forth in the affidavit are in substantial conformity to our statute, and the use of the word “national” in the jurat of the notary is so manifestly a clerical misprision—and this it may be on the part of the City Court clerk—as to be of no importance; the intention clearly was to say “notarial seal” and not “national seal.”

The judgment must be affirmed.

Affirmed.