Spielman v. Flynn , 19 Neb. 342 ( 1886 )

Maxwell, Oh. J.

This action was brought before a justice of tbe peace of Platte county by Thomas Elynn against Benjamin Spiel-man, David Anderson, Joseph Schmitz, Peter Zibach, Geo. Berney, W. D. Davis, Henry Ahrens, Gerhart Loseke, and Charles Medaedel to recover the value of fourteen calves, which it is alleged Spielman, as sheriff of Platte county, levied upon and sold. The cause was removed under the statute to the county court of Platte county, the names of the sureties being stricken from the bill of particulars. A' trial was had in the county court from which an appeal was taken to the district court.

The petition filed in the .district court is as follows:

“ Plaintiff complains of defendant, and alleges that said defendant, on the 14th day of December, 1881, unlawfully and forcibly took from the premises of plaintiff and forcibly and unlawfully carried away fourteen (14) yearling calves of the value of fifteen dollars ($15) each, the property of plaintiff, and still unlawfully detains the same — to the damage of the plaintiff in the sum of one hundred and ninety dollars ($190), for which sum plaintiff prays judgment with interest,” etc.

■ Spielman in his answer states in substance that at the time indicated he was sheriff of Platte county; that at the September term of the district court of said county one Peter Klinchi recovered a judgment against one Michael O’Hearn for the sum of $900, and costs; that on the23d day of December, 1881, said judgment being in full force and effect the clerk of said court issued an execution thereon directed to said.Spielman as sheriff; that on said day said Flynn “ pretended to purchase said calves from said Michael O’Hearn, and did take possession of said calves and remove, them from the custody and possession of said Michael O’Hearn, under and by virtue of a fraudulent and corrupt conspiracy with said Michael O’Hearn to hinder, delay, and defeat the collection of said execution,” and that “ acting as such sheriff he levied upon and sold said calves.”

Flynn in his reply admits that Spielman was sheriff and was acting under an execution as alleged, “admits that one Peter Klinchi recovered a judgment against O’Hearn, and that at said time said judgment was not satisfied,” “ admits that at the time said calves were seized by said defendant they were in his possession, and denies each and every other allegation of the said answer.”

The issues made by the pleadings have been stated, because to some extent at least they seem to have been lost sight of in the trial of the case, and as an answer to the first objection of the plaintiff in error that the action is brought to recover for the misconduct of an officer in office, of which a justice of the peace would not have jurisdiction.

' An examination of the petition will show that the action is for the conversion of the property — for its value, and not for misconduct. In this regard the action is substantially like that of Miller v. Roby, 9 Neb., 471, and Neihardt v. Kilmer, 12 Id., 35. In the latter case it is said in the syllabus that a justice of the peace has jurisdiction of an action for the taking and converting of personal chattels of the value of two hundred dollars or under, and is not ousted of such jurisdiction by pleading and proof that defendant took such chattels by virtue of an execution, he being the sheriff. These cases are decisive .of this question and the first objection is not sustained.

2d. That the court erred in suppressing the testimony of Spielman. The record contains the following stipulation :

"Thomas Flynn, v. Benjamin Spielman. }Stipulation.

“ It is hereby stipulated and agreed by the parties hereto that the evidence of Benjamin Spielman so given on the trial of this ease, in March, 1883, may be used and given in the next trial of this case as his testimony, provided that he is not present or within the jurisdiction of the court at the time of trial, July 20, 1883.”

This stipulation was signed by the attorneys for both parties. It appears that the attorneys for the defendant below had procured from the court reporter a copy of the testimony of Spielman on the former trial; that on the day of trial the attorneys for the plaintiff below asked for an order to permit them to inspect such testimony. The record shows that, “ thereupon it was ordered that counsel for defendant submit said evidence to the inspection of plantifFs counsel immediately, and that on failure so to do said evidence be excluded from the jury on the trial of this cause.” The order also recites that “ this motion was first made on the day of trial and after the case was called for trial.” The order does not seem to have been complied with, and when the attorneys for the defendant below offered a certified copy of the testimony of Spielman in evidence, it was objected to for the following reasons: First, Because of the refusal of the attorneys for Spielman to permit an inspection of the testimony. Second, Because there is nothing to show that “ this is the evidence of Benjamin Spielman on the former trial of this case.” Third, There is nothing to show that this is all the evidence given by Spielman on the former trial. Fourth, That there is no certificate or anything else to show that this is a true and correct copy of the testimony of Spielman. These objections were sustained, and the testimony excluded. The certificate is as follows: “This is all of the testimony of Benjamin Spielman. Sig. E. M. Battes court reporter, copied by M. E. Wheeler,” the court reporter at the time of the trial. This certificate although not very formal is sufficient prima facie to show a correct copy of all of Spielman’s testimony.

The present act to provide stenographic reporters for the district courts was passed in 1877, and is substantially embodied, in chapter 19, Comp. .Statutes, section 47 of which provides that “ the said reporter shall attend all terms of the district court held within and for the district for which he is appointed, and shall make a stenographic report of all oral proceedings had in such court, including the testimony of witnesses, with the questions to them, verbatim, any further proceedings or matter when directed by the presiding judge so to do.”

Sec. 48 provides that “ said reporter shall keep and maintain an office within the district for which he shall be appointed, and shall keep and preserve in his said office all stenographic reports made by him as in this subdivision required. Such records shall be the property of the state, and upon the termination of his office the said reporter shall deliver the same to his successor in office.”

Sec. 49 makes it “ the duty of such reporter to furnish on the application of the district attorney, or any party to a suit in which a stenographic record of proceedings has been made, a long-hand copy of the proceedings so recorded, or any part thereof, for which he shall be entitled to receive, in addition to his salary, a fee of five cents per hundred words, to be paid by the party requesting the same,” etc.

It will be observed that the statute makes the office a public one, and requires it to be kept in the district where the reporter is exercising the duties of his office; that the reports themselves are designated records and declared to belong to the state, and it is made the duty of the reporter to furnish a long-hand copy of the proceedings in a suit or any part thereof to any party to the action. From the necessity of the case such transcripts must be certified.

Sec. 408 of the code provides that “duly certified copies of all records and entries or papers belonging to any public office, or by authority of law-filed to be kept therein, shall be evidence in all cases of equal credibility with the original records or papers so filed.”

This section, no doubt, applies to the records,of evidence kept in pursuance of law by a court reporter, and the copy would be admissible in all cases where it would be proper to use the original.

Chapter 74 of the Comp. Stat., authorizes all persons interested in the examination of public records to make such examination free of charge during the hours the respective offices are kept open. The original was open to the inspection of either party, and either or both upon payment of the necessary expenses could have procured a, copy. There was no reason, therefore, for demanding before the copy was offered in evidence an inspection of the same, or for the court to make a compliance with such order a condition of offering the copy in evidence. Had the oi'iginal record been lost or destroyed the rule no doubt would be different, because then the copy would perhaps be the best evidence of what the original was.

Sec. 394 of the code provides that “ either party or his attorney may demand of the adverse party an inspection and copy, or permission to take a copy of a book, paper, or document in his possession or under his control containing evidence relating to the merits of the action or defense.” It is pretty clear that this section relates to books, papers, or instruments where the originals, or at least the exclusive copies, are in possession of the adverse party, and does not refer to public records open to the inspection of either.

The question is very fully discussed in 2 Phillips on Evidence (4 Am. Ed.), pages 304-336, and although our statute has enlarged the rule somewhat, the writer has been unable to find a single case to sustain the ruling of the court below. The court therefore erred in its order, and under the stipulation of the parties, in excluding the testimony of Spielman.

3d. The testimony of Spielman was material to his defense, without which it is apparent he could not safely proceed to trial. The court, therefore, having excluded that, should have granted a continuance. Suppose this testimony had been in the form of a deposition, which on the motion of the adverse party had been suppressed, it will not be seriously contended that the defendant below upon terms as to payment of costs would not have been entitled to a- continuance. He is equally so now. There is no doubt the copy of Spielman’s evidence set out in the record is substantially what he would have testified to had his deposition been taken. Where, therefore, such evidence is suppressed and it is so material that the party in whose favor it was taken cannot safely proceed to trial, a continuance upon such terms as may be just should be granted.

4th. As stated at the outset, the case was not tried upon the issues made by the pleadings. This issue is simply whether the transfer of the property in question was made to hinder or defraud creditors of O’Hearn. The case must be tried upon the facts then existing, not upon what may have transpired between O’Hearn and other parties months afterwards. In other words, did O’Hearn transfer this property to Lynch to prevent it from being applied in payment of his debts, and did Lynch have knowledge of such facts in connection therewith as would have put a man of ordinary prudence upon inquiry? This must be determined from the facts and circumstances then existing. As there must be retrial of this case we will not discuss the facts.

Some objection is made to the instructions, but as in the next trial the actual questions involved and no others will probably be tried, it is unnecessary to review them.

The judgment of the district court is reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED.

Cobb, J., concurs.