Inhabitants of Jay v. Inhabitants of East Livermore , 56 Me. 107 ( 1868 )

Kent, J.

The single question before us is whether the present cle facto wife of Nathaniel Blackwell and their three children acquired a settlement in East Livermore, by virtue of the admitted settlement of Nathaniel in that town. That depends upon the decision of the question, whether there was a legal marriage between the parties above named—and that depends upon the question, whether he was competent to contract and enter iuto a marriage at the time it was solemnized—and that depends upon the determination of the question, whether he had been divorced from a former wife, who is still living. The. only matter in dispute relates to the last question. If a divorce had been decreed before the second marriage, " either of the parties might lawfully marry again.” Stat. 1858, c. 45. The second marriage was after this Act went into effect. The case is submitted to the Court to determine, upon the facts agreed and the evidence reported', the whole case.

It is incumbent upon the plaintiffs to satisfy us, by legal and sufficient evidence, that a divorce was decreed by a competent tribunal, by which the bonds of matrimony were severed and the husband put into a marriageable condition.

To prove this, they introduce several papers. The first, (marked A,) is a certificate signed by the clerk of this Court, stating in substance that a divoi’ce was decreed by the Court, at a term named, "as will more fully appear by the record of the proceedings in this office.” It is objected that this is a mere statement by the clerk of what he thinks • is contained in the records and papers of the Court. It does not purport to be a copy of any record or docket, or paper. An official certificate of what is contained in a record, docket, deed or other instrument, is not admissible in evidence, unless made so by statute. The paper (A,) therefore, is not admissible as proof of any fact therein stated, and is out of the case. McGuire v. Sayward, 22 Maine, 233; Green v. Durfee, 6 Cush., 363; English v. Sprague, 33 Maine, 441; Oakes v. Hill, 14 Pick., 448.

It is objected by the defendants, that paper B is not admissible as evidence of what is contained on the docket, because the clerk only certifies that it is a true extract from the docket, and not a true copy of all on the docket relating to the case. We think this objection also is well taken. A clerk, or other certifying officer must not make extracts, unless by consent, but must copy and certify the whole record or instrument. We therefore lay this certificate and extract out of the case.

The paper (E) is a duly certified copy of the docket of this Court, held in the county of Oxford, March term, 1856, by a Justice named. That copy is as follows : —

" No. 464. Nancy Blackwell, Libellant, versus Nath’l Blackwell. (Counsel’s name.)

" Notice proved, 9th day. Divorce decreed. $5j3 worth of property decreed to the wife, and custody of David E. Blackwell, as prayed for in the libel. [Recorded vol. 5, page 44]”

Then follows, as part of the docket, the entry of the general order on the lltli day of the term, that judgment be entered up in all cases where a final decision has been had.

The paper D is then produced, which is certified as a true copy of record, and must be from the book in which the extended records arc kept, otherwise if could not properly be certified as a record distinct from the docket. The heading is the same as to the term, and then follows the declaration, that, — "In, the following actions, papers not filed.” "Nancy Blackwell, Libellant, v. Nathaniel Blackwell.”

Then follows the record of the same general order as to judgments, as on the docket. This record is attested by the then clerk, as was the docket.

Although there is no formal certificate that this record is the 5th volume on page 44, as indicated in brackets on the docket, yet w7e cannot hesitate to regard it as the record there referred to — no other being produced or alleged to exist by either party.

These papers, (D & E,) present in substance a case, where the suit has been disposed oí on the docket, which shows the action of the Court, but has never been otherwise recorded in extenso, than is shown by paper D, because the papers have never yet been filed.

The question is whether the Court can find on this docket and record enough to satisfy them legally that a divorce was granted. How far is the docket and its entries evidence of the doings of the Court?

It will be observed that this is not a question arising in a suit on a judgment, or in a controversy between the parties thereto, or in which either of the parties to the divorce is before the Court, as plaintiff or defendant. It is a case where the question arises incidentally—and, as a matter of evidence offered to establish a fact, which becomes important in determining the legal rights of third parties.

The first question is how far the docket entries are evidence of what the Court has decreed or adjudged, and, secondly, if they can be thus used, how long can they thus remain as evidence.

There seems to be a perfect agreement, in all the cases in this State and in Massachusetts, that the docket is sufficient evidence of the doings and judgments of the Court, and may be used in evidence, for a time at least. The question is when these entries cease to be evidence ? Are they such only until a sufficient time has elapsed to enable the clerk to extend the record, or are they to remain as the evidence of what the Court has done, until the extended record is made and certified.

In examining some of the cases bearing on the question, we may reverse the usual order and examine the latest case first, and then trace the rule back through the various cases relied upon. The case of Central Bridge v. City of Lowell, 15 Gray, 122, was decided in I860,, but the volume in which it is contained has been issued since the argument in this case. In that case certain dockets of judgments in suits at law and equity between the parties were admitted by the Judge at the trial. C. J. Shaw, in answer to the exceptions taken to that ruling, says,—we think "that the admission of dockets of judgments, it not appearing that judgments had been entered in extenso in books of record, was also correct.” It appears, by a note of the reporter, that " the respondents contended that the only competent evidence of other suits was a duly certified copy of the record.”

It will be observed that the decision is placed on the ground that it was not shown that there had been any extension of the judgments on books of record. And further, that it does not appear that there was any exhibition of or proof in relation to the existence of the original writs or bills—or of any document or paper, in any of the cases. The docket entries alone were admitted as evidence of the judgments giv.en, and were regarded as sufficient proof oí the facts therein stated.

The case of Benedict v. Cutting, 13 Met., 181, was where a recognizance, on which an action was brought, had never been extended on the record. The Court say, — "It is not necessary that matters should be entered at large on the books of the Court to be a record. The docket and files constitute the record, until it can be made up in form by the proper recording officer.”

The case of Reed v. Sutton, 2 Cush., 115, resembles in many features the case at bar. In that case, the validity of a sale of an equity of redemption depended upon proof of a judgment against the original debtor. The case was between third parties. The docket entries were offered as proof of such judgment. They were the usual brief notes of the amount of damages and cost, with the addition of "judgment by agreement.” No default was minuted. An entry of " Cont., ex re,” which was first entered, was stricken out, an appearance for defendant having been entered. It appeared also, by the books in clerk’s office, purporting to be the records, or part thereof, for the same term, that the case was there extended in usual form, but it did not appear that this record was in the handwriting of the then clerk, (who deceased before the entry of the action,) and it appeared that the supposed record had never been examined and certified by that clerk. The deposition of the presiding Judge and the affidavit of the clerk, given in another case, were offered, but not deemed admissible as controlling or qualifying the docket entries. The supposed record was laid out of the case, and the case stood upon the docket entries alone. No statement of any offer or examination of the original writ or papers appears in the report. Shaw, C. J., in delivering the opinion of the Court, says, — "The docket is the record, until the record is fully extended, and the same rules of presumed verity apply to it as to the record. Every entry is a statement of the act of the Court, and must be presumed to be made by its direction.” The judgment of the Court was held as sufficiently proved by the docket entries.

In Davidson v. Slocomb, 18 Pick., 464, it was held that the minutes of a justice of the peace, " although not technically a record, contain all the material parts which the record would comprise if it were made up at large and in the usual form, and as the record has not been thus extended in fqrm in consequence of the death of the justice, the minutes are to be regarded as substantially a record of the proceedings, and are entitled to the same credit as a record at large would be if it had been thus made up. The minutes of the journals of the House of Lords are held to be records, and a copy of these admissible in evidence. Jones v. Randall, Cowp. 17; Bac. Abr., Evidence, E.”

The Court in Massachusetts has 'gone still further and held that where no record aud no docket entries are shown, yet the docket entries may be proved by parol, where there is evidence actual or presumed of a loss. The case of Pruden v. Allen, 23 Pick., 187, was, perhaps, the first in the series as to the Court docket, and, in that, the Court held that it had proof enough from extraneous sources to permit the Court to find that there was once a docket, although none was found, and no extended record, and no petition for license, and no papers of any kind, and that the lost docket did contain a minute of the granting of a license to an administrator to sell real estate, and the title under suck sale was sustained. The Court say, "that the clerk intrusted with the duty of keeping records, must, of necessity, take down the doings of the Court in short and brief notes, from which a full, extended and intelligible record is after-wards to be made up. But, until they can be made up, these short notes must stand as the record.” If the docket is lost, the contents may be proved as other lost documents may be.

Tillotson v. Warner, 3 Gray, 574, holds the same doctrine as to proof of lost minutes, and adds that, " it was not necessary that the minutes should have been extended so as to iorm a full and complete record.”

In Sayles v. Briggs, 4 Met., 421, it was held that when the evidence is distinct, that no record and no minutes or docket entry of any kind was made, parol evidence cannot be admitted to supply it. Mr. Justice Hubbakd says,— "And the cases are abundant to show that a lost record, like a- lost deed, may be proved by parol; and that the minutes may be introduced where the record has not been drawn out in extenso, as containing the elements of the record, and, in truth, for the time being, the record itself.” 2 Saund. PI. & Ev., 661. lie then adds these forcible words:—"If this were not the rule, substantial injustice might be done to innocent parties who had no duty to perform in making up the records, and were not charged with the care of their preservation.”

In our own Court, there have been several decisions on the questions hero involved. The case of Longley v. Vose, 27 Maine, 179, recognizes the soundness of the doctrines set forth in the Massachusetts cases, and sustains the view that the docket entries are to stand as the record until more fully extended. Shepley, J., in supporting this view, says,—"the Court can as well be informed of the substance of the record by the minutes as by the record made up from them under its direction. When proof of the existence of a record is to be made before the same Court, that arising from the minutes of the clerk, properly made, may be nearly if not quite as satisfactory as that derived from an extended and completed record.”

The Court also held, that where the short minute on the docket was only that the defendant "recognizes in $100”— "the Court in which it was made would be informed that he had entered into such a recognizance as the law then required, in the sum of $100, to be extended according to the usual form and course of proceeding in that Court, and such a record would accordingly be considered as proved by the minute of the deceased clerk, until'a more extended and perfect one could be made.”

In that case, it was objected that, in the record as made up, the recognizance was stated to be "to prosecute the appeal with effect,” and that that was not the one required by the existing law. The Court say, — "If the clerk misapprehended the law and erroneously made use of the word "effect,” such an error in the record of the action would not affect a record of the recognizance as proved by the minutes. The latter would be the true record of it, the former but a reference to it, stating, it may be, its contents in one particular erroneously.” This would seem to make the docket entries the true record, and, to determine that, those entries might override the extended record, even before any amendment made in it.

In the same volume, (27 Maine,) Chamberlain v. Sands, 467, it was held that the minutes of examining magistrates, who were bound to make up a record, might be used in evidence, in accordance with decided cases, "before such formal record had been made.”

The case of Leathers v. Cooley, 49 Maine, 337, is a very strong, if not entirely conclusive authority in favor of the plaintiff.

It was an action on a recognizance, to prosecute an appeal and to pay costs recovered. It became necessary to establish the fact of the existence and rendition of a judgment. The only evidence offered were the docket entries in another court. It appears that no extended record had been made, because no papers had been filed, either the writ or other papers. All rested on the docket entries. The Court say, in the opinion of the majority, — "The rule is now well established that the docket is the record, until the record is fully extended and the same rules of presumed verity apply to it as to the record. * * The entries upon the docket sufficiently show that the judgment had been entered up before this suit was brought.”

Indeed, the learned counsel for the defendants seems to admit that this case is a full authority against his main propositions, and that "the less that is said about it the better.” This may be a very convenient, as it certainly is a very summary mode of disposing of ail adverse decision. Wo might have rested, so far as a direct authority in our own Court is concerned, upon this case, as one not overruled. But we have deemed it proper and expedient, after the very earnest attemjat of counsel to overthrow it, to examine the authorities, to see if it was so entirely unsupported as is contended in the argument.

The counsel objects on various grounds to the admission of the docket entries as evidence of the fact of a divorce, and insists that the party offering it should produce, at least, the libel and other papers from which the record could be extended. But the plaintiffs are no parties to the record, and are not presumed to have in their possession the libel and papers. They are in no fault, if any one is, that the record has not yet been extended. The counsel seems to assume that it is impossible that the record should ever be made up more fully. But non constat that it may not now be extended. Wo see that in New Hampshire the record is never extended, except in very particular cases, unless a party to it desires a copy to sustain a suit upon it, or for some new use. And this is often made up twenty or thirty years after the rendition of the judgment. Until such extension, everything rests upon the docket entries. Willard v. Harvey, 24 N. H., (4 Foster,) 344.

The exact fact in this case is, that the record had not been extended at the hearing. The authorities hold the docket entries may be used, certainly by third parties, until this is done. The reason is obvious. The docket showing that a judgment or decree was entered at a particular term, is confessedly evidence of the fact for a time. Suppose that the parties in the case of divorce should both contract a new marriage, as they might legally, the day after the adjournment of the Court, and the entering up of judgments of the term, and, of course, before any extension of the record. If, thereupon, they had been arrested for the crime of adultery, and, if the attorney had' destroyed the libel, or refused to produce it, or to furnish any papers, and the clerk declined to extend the record without the original, must they be convicted notwithstanding the docket record ?

The legal settlement in this case depends upon the fact of divorce. If there ever was, for a day, a divorce, that fact is sufficient for the plaintiffs, unless there had been a judicial revocation. Can any one doubt that there was, and that it was proveable by the docket entry, for a time long enough for the record to be extended in the usual course ? This is admitted. If, then, the record was enough to establish the fact of divorce, as once existing, no subsequent neglect of an attorney or the clerk could restore the parties to the married state and deprive them of their legal rights as divorced parties.

The cases of divorce are distinguishable from the ordinary judicial controversies. The public have an interest in them. Morality and domestic relations, and public policy and the peace of society, all claim a share in the effect to bo given to divorces. New rights are conferred on the parties, and new married relations may be lawful, which, but for the legal efficacy of the divorce, would be adulterous and criminal. Our statute has therefore refused a right in the Court to grant a now trial or review, where either of the parties has contracted a new marriage. The decree is absolute, and, however strong the reasons may be, there can, in such a case, be no opening of the case anew. This feature distinguishes divorces from the common cases between party and party. The reason for the distinction is obviously one resting upon considerations of public policy and domestic harmony, giving to the decree an unusual conclusiveness.

The counsel for the defendants insists that the Court cannot regard the docket entries as a sufficient record, because the original libel is not produced and exhibited to the Court, to show that if contained averments sufficient to give the Court jurisdiction, and that it was signed, &c.

Now, in none of the cases cited, has this been required. These plaintiffs never had any possession of that pajaer. They rest upon the docket as the record, until a full record is made. If a third party cannot avail himself of such entry, without producing all the original papers, in most, if not all cases, the party would be remediless.

What does the docket show? It shows that Nancy Blackwell entered a case, as libellant, against Nath’l Blackwell. It shows it was heard on a libel, for it gives the custody of the child, "as prayed for in the libel.” It shows that notice was proved, and that the divorce was decreed, and that a certain amount of property was decreed to the wife.

In the quotation from the opinion in Longley v. Vose, it will be observed that the Court held that, from the short minute on the docket, that defendant " recognizes in $100,” the Court would be informed that he had entered into such recognizance as the law then required.

In the case before us, we are informed that a libel was entered, acted upon after proof of notice, and a decree of divorce made, and also a decree of allowance and one relating to the custody of the child.

But, it is said, that the docket does not show that the Court had jurisdiction. But the proceedings were in this Court, which is the highest Court, and not of limited jurisdiction. We are not to assume, that it had no jurisdiction, but, on the contrary, when it appears that it has acted on a subject confessedly within its jurisdiction, we are not required to demand direct proof that the case was brought by the allegations or terms of the libel within the powers and jurisdiction of the Court. The Legislature has 'seen fit to give to this Court an almost unlimited power to grant divorces. This authority is only limited by the requirement that, in the judgment of the Justice presiding, the granting of the divorce would be " reasonable and proper, conducive to domestic harmony,” &c.

By reference to the various cases in the reports, it. does not appear that in any of them the decision was made on the ground that the original writs were or were not produced-.

It is also objected, that it does not appear that the defendant was defaulted. But a divorce is never decreed on a default alone. The Court always requires proof of the allegations, and the default, if one is entered, has really no effect on the judgment, and-is immaterial.

The identity of the party, with the pauper, it is said, has not been and cannot be established. But, is there any more difficulty in identifying, under the docket entries, than there would be if the record had been fully extended? The same question might then be made as is here made. A fully extended judgment for or against " John Smith” might require evidence to fix it upon a pai’ticular individual of that name. It is the constant and well established practice to admit parol testimony to identify persons or property named in a deed or record. Dane v. Gilmore, 49 Maine, 179.

It is -urged that the mode and character of the notice, named on the docket, does not appear. But when a record states that notice was given and proved, we may safely assume that it was a legal notice. Even extended records do not show how the notice to a defendant was given, or even refer to the return of an officer on the writ. If the Court, in Longley v. Vose, could understand that a party had given a legal recognizance, in the usual and required form, from the docket entry of " recognized in $100,” we may be entircly safe in understanding, from the words " notice proved,” that due and legal notice had been given.

On the whole, after a full examination of the case as presented to us, we are of opinion that the legal .evidence is sufficient to prove the divoroe, and therefore, according to the agreement oí the parties, there must be

Judgment for the plaintiffs for $95,18,

with interest from date oj the writ.

Walton, Dickerson, Barrows, Danforth and Taplet, JJ., concurred.