Facey v. Fuller ( 1865 )

Campbell J.:

Fuller sued Facey upon a judgment purporting to have been rendered in his favor, against said Facey, by one D. C. Morehouse, Justice of the Peace. The judgment was proved by the certificate of Albert L. Porter, ■Justice of the Peace, who certified a transcript from Morehouse’s docket, stating- the docket and judgment to bé under his possession and control.

It was objected that the evidence of Porter’s being a Justice of the Peace was insufficient, because proof was made by an ordinary witness, and not by the county clerk, or other person having official knowledge. The proof was full and clear that Porter was an acting Justice in Coldwater, Branch County, at the date of the certificate. It is not usually necessary to prove more than this, and the acts of a person in the full enjoyment of public office do not require any further sanction. The actual legal right of an incumbent cannot be tried in a collateral action between third parties, and the user of an office may be proved by any one who knows the fact.

It is also objected that it does not appear that Porter had any authority to make the transcript. He is a person in whose custody the docket of a former Justice of the same place may legally be placed; and when he certifies that it is actually in his custody, it must be presumed to be there, and to have been placed there by lawful means. If a certificate of an officer cannot prove that the document he certifies is in his custody, it can be of no value as evidence. When the law pro' vides for such proof, it regards the certifying officer as acting under his official oath, and gives credit to his acts accordingly. Our statute expressly provides for just such a certificate, and declares that the transcript, when certified, “shall be evidence to prove the facts stated in such transcript.” — 2 Comp. Laws, §3893. We think that when a Justice certifies such a transcript, the original must be presumed to be in his legal control.

The defendant below offered to prove that no process was ever issued or served on him in the original suit, and that he never appeared in it. The docket shows service and return of a summons, a personal appearance, and plea of the general issue, and regular proceedings to judgment.

Among other things required by law to be entered by a Justice on his docket, áre, “the time when the parties appear before him, either without process or' on the return of process,” and, “ when the pleadings are made orally, a. concise statement of the declaration of the plaintiff, the plea of the defendant, the further pleadings of the parties, if any, and the issue joined.” — 2 Comp. Laws, '§3890. This appearance and pleading can only be made in open Court, in the presence of the Justice. Whether, therefore, a party appears and pleads, is a fact which must come within his personal knowledgé, and on which his subsequent action must always be based. Without deciding , how far questions of- jurisdiction can be considered open in other cases, we think that, where the Justice has found and entered these facts of' personal appearance and pleading in the cause it would be entirely unsafe to permit them to 'be dis-, proved, any more than to allow any question on the merits to be reviewed. The law respects his judicial action, and will not allow his assertions of what he must personally know to be disputed. There is some conflict in the authorities as to how far jurisdiction, when recited, may be impeached. . But since the return of a ministerial officer of personal service is nnimpeachable, we think it would be little short of absurd to deny to the finding by a Justice of a fact within Ms own knowledge, at least as mucb credit ■ as is due to Ms constable’s certificate. There is no question of identity raised in the present case. We think the Court was right in refusing to allow the docket to be contradicted. As appearance and pleading would dispense witb personal service of process, we 'express no opinion upon the testimony offered to dispute the issue and service of summons.

• There is no error in tho judgment, and it must be affirmed, with costs.

The other Justices concurred.