McCormick v. Deaver

Goldsbobougii, J., delivered the opinion of this Court. The principal question in this case arises out of the ruling of the Circuit Court for Frederick County, by which, the record offered by the appellants as the foundation of the suit in controversy, was not admitted in evidence. The question of the admissibility of this record was raised by the appellee’s plea of nul tiel record. The record alluded to, professes to bo a transcript of proceedings had in the Circuit Court for Clarke County, in the State of Virginia, amongst which, the appellants allege there is a decree passed by the Court against the appellee for the sums therein stated.

Upon this, as a foreign decree, the appellants instituted their action in the Circuit Court for Frederick County. The record is authenticated according to the requirements of the Act of Congress of 1790, ch. 11; and the appellee concedes that this authentication is certainly prima facie evidence of the correctness of the record. But lie insists that by an inspection of the record, it will appear that material portions of the proceedings have been omitted, and further, that the paper purporting to be the decree upon which suit was brought, was not signed by the Judge of the Circuit Court for Clarke County. By reference to the certificate of the clerk of that Court, we find that he certifies “that the foregoing is a true transcript of the record and proceedings in a certain cause lately depending in said Circuit Court, between Neill and West’s trustees, plaintiffs,' and Deaver and West and others, defendants, with all things touching the same, as fully and wholly as they now exist among the records of my office.” ¹⁹⁴ In the absence of any special objection to this, record, this certificate imports such positive and absolute verity that it cannot be contradicted or the truth of it denied here, any more than in the State where it originated, certainly not by mere inference.

See Wernwag vs. Pawling, 5 G. & J., 507 . It is clear that, if the transcript contains a full statement of the proceedings amongst which is the decree relied on by the appellants, the plea of the appel-lee would be no legal defence to the present action. We deem it proper to say if the defect affirmatively and clearly appears on the face of the record, and that the whole of the proceedings have not been transmitted, the clerk’s certificate would not preclude us from a consideration of the defect, especially if that defect substantially affected the merits of the decree. It is contended by the appellee that the record is defective in this, that -the deed which is made an exhibit in the cause, refers to a schedule of