Jones v. Jones

85 S.E.2d 156 (1954) 241 N.C. 291

Robert Page JONES
v.
Edith JONES, alias Ada Bennington Jones

No. 672.

Supreme Court of North Carolina.

December 15, 1954.

Robert A. Merritt, Wharton, Poteat & Wharton, William M. Poteat, Greensboro, for plaintiff-appellant.

Jordan & Wright, by Luke Wright, Greensboro, for defendant-appellee.

HIGGINS, Justice.

The question in dispute in the case below was whether the defendant had obtained a divorce from her former husband. She was permitted to testify that she paid a lawyer in Roanoke, Virginia, the sum of $150, gave a deposition, and that later she obtained a paper with a seal on it which she left at Roanoke, Virginia, 20 or 25 years ago and had not seen since. The court, over objection, permitted her to testify as to her recollection of the contents of the document. She said: "The best I recall, it was Ada Bennington Jones vs or something like that, Benton F. Jones * * I don't remember what it was exactly, except something about me being divorced by the State of Virginia." The court evidently admitted this testimony over objection on the theory that the defendant had laid the foundation for the introduction of parol testimony to prove the contents of a lost document. However, his Honor overlooked the fact that the paper could be nothing more than a copy of an original record of the Circuit Court of Virginia. The contents of a court record cannot be proved by parol upon the mere showing that some copy of it has been lost or destroyed.

In order to admit secondary evidence of the contents of a court record, it is necessary that the foundation be laid by showing the original record has been destroyed, or lost. "The record itself in the former action, being in existence, is the only evidence admissible to prove its contents." Gibson v. Gordon, 213 N.C. 666, 197 S.E. 135, 137; Gauldin v. Town of Madison, 179 N.C. 461, 102 S.E. 851, 10 A.L.R. 1497; Little v. Bost, 208 N.C. 762, 182 S.E. 448.

"The proceedings of Courts of record can be proved by their records only; this is by reason of the vagueness and uncertainty of parol proof as to such matters, and of the facility which the record affords of proving them with certainty. Public policy and convenience require the rule, and a necessary consequence from it is the absolute and undeniable presumption that the record speaks the truth." State v. Norris, 206 N.C. 191, 173 S.E. 14, 16.

It is unnecessary to examine other questions raised by the appeal.

New trial.