Smith & Bro. v. Van Gilder, Adm'.

[JUNE law, to all intents and purposes, as if done and certified by a justice of the peace or other authorized officer within this State." And it is provided by the statute of depositions (sec. 16, chap. 55, Gould's Digest,) that no authentication of the official character of any judge, justice of the peace, or other judicial officer, shall be necessary, when a deposition shall be taken before any such officer within the State. And this rule, we presume, applies equally to all oaths administered and affidavits taken, as to depositions, and for the same reason. By the same section last above mentioned, depositions, taken out of the State, by judges and justices of the peace, shall be authenticated by a certificate of a clerk of some court of record under his official seal. These general rules, as laid down by the statutes, are founded in the most substantial reasons. The design of the law is simply to afford evidence of the proper making and subscribing of oaths and affidavits. And when the authentication, which is such evidence, fulfills this design, this should be sufficient for the courts. Courts cannot take judicial notice immediately of the official character of officers of other States. Such notice must necessarily be mediate, that is, through and by the solemn sanction and attestation of a public seal. But it is entirely otherwise as to officers of our own State. Such the courts are bound to take judicial notice of, immediately, and any mediate authentication, as by a clerk under the seal of his office, would be quite superfluous. Likewise, they must take judicial notice of their acts, when performed within the scope of their duties, and in a legal manner. These general rules, of the statutes, apply equally to commissioners residing abroad. They are nothing more nor less than officers of this State. Like judges and justices of the peace at home, they are appointed by authority of this State. They take and subscribe an oath of office, which, together with their signature, and the impression of the seal of their office, is filed in the office of secretary of State, of this State. The courts of this State are bound to take judicial notice of their official character and their acts, required of them by the laws

TERM, 1871.] Smith & Bro. v. Van Gilder, Adm'r.

of this State, properly authenticated under the seal of this office, are to receive full faith and credit. The acts therefore of such functionaries, notwithstanding they reside beyond the State, are thus placed upon a par, as to their authenticity, with similar acts performed by officers of this State, residing within her limits. And such has clearly been the ruling of this court heretofore, as declared in Johnson v. Cook, use etc., 12 Ark. 680; Stone, ad’mr. v. Kaufman & Co., 25 Ark. 188; Kaufman & Co., v. Stone, admr. 25 Ark. 349. In the latter case, this court said: "the record of the appointment of Graham (who was commissioner in the State of Louisiana,) by the Governor, is a matter of which the courts of this State must take judicial notice. The certificate and official seal of the commissioner, was all the evidence of official character that parties litigant were bound to furnish." Section 109, above referred to, relating to the authentication of claims against the estates of deceased persons, and upon which the defendant seems so much to rely, provides that, "an affidavit taken out of the State, if the official character of the person taking it shall appear from the certificate of a clerk of any court of record under his offi- ' cial seal, shall be received." This, doubtless, relates to officers of other States and not to commissioners appointed by authority of this State, for the latter, as we have seen, are virtually officers of this State; and we are helped to this conclusion by this same section, when it declares that, "any judge, justice of the peace or notary public of this State, have power to take the affidavit required by this act to authenticate any claim against the estate of a deceased person." As we have seen, commissioners, in this State, stand in the same relation, in this matter, as do those officers. It is further contended that the affidavit is legally insufficient, because it does not authenticate the claim expressly against Evans or his estate. The note was executed by Kittrell & Co. The affidavit was to the effect that nothing had been paid upon it. It was in the usual statutory form, but did not allege the amount was due from Evans' estate. Is this an authentication as against the estate of

Smith & Bro. . Van Gilder, Adm'r.

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Evans? Kittrell & Co., were liable upon the note. If Evans belonged to the firm, he was liable, and at his death, his estate became liable. But the plaintiff's allege that he was a member of the firm, and they presented their claim, before bringing their action, to the administrator, and he disallowed it. It really seems to us that the authentication was legally sufficient, when we consider the presentation and demand, the allegation that the deceased was a member of the firm, and the offer of plaintiff's to prove it. For, if the authentication had expressly indicated that the debt was due from Evans, or from his estate, there would have been the same necessity on the part of the plaintiffs to prove that Evans belonged to the firm of Kittrell & Co., as there is in its present form. Nor can we see that the authentication so made, would fix the indebtedness with more certainty than it does, or place the administrator in a better condition to resist the claim if unjust.

The second question is, did the probate court err in refusing to permit the plaintiffs to prove that the deceased was a member of the firm, when the note was executed? This question is virtually answered by our observations upon the legal sufficiency of the affidavit. For certainly, if the affidavit was sufficient, the plaintiffs had a right to prove their allegation, that Evans was a member of the firm, in order to fix his liability upon the note.

it was the But we are

The third question is, as to whether the circuit court erred in refusing to try the case de novo? This might be considered as being answered by what we have already said. For if the probate court erred as to matters of law and fact, duty of the circuit court to try the case de novo. disposed to consider this question further, upon general principles, relating to practice. Under the old system of practice, before the Code of Practice went into operation, it was incumbent upon the circuit court, when it was of opinion that the probate court erred in relation to any material matter of law or fact, to try the matter de novo. Sec. 210, chap. 4, Gould's Digest; Grimes ad'mr v. Bush. 16 Ark, 649. When the circuit

TERM, 1871.] Smith & Bro. . Van Gilder, Adm'r.

court discovered no error, it simply affirmed the judgment. When the decision of the probate court involved merely a question of law and its judgment was reversed, the circuit court remanded the cause to the probate court, that a trial might be there had upon the merits. Dempsy v. Fenno, 16 Ark. 491. But the practice, in these matters, has been very much changed by the Civil Code of Practice. It appears from sections. 19 and 20, of the Code, that the appellate jurisdiction, of the eircuit courts, shall extend to errors of facts, as well as errors of law, in the orders and judgments of probate and certain other courts.

It is further provided, in section 830, that appeals shall be docketed and stand for trial, as actions by proceedings at law, and that the actions shall be tried anew, as if no judgment had been rendered. And, by sections 796 and 806, it would seem that the provisions of section 830 are applicable to circuit courts, upon appeals from probate courts, as well as from all other courts, inferior to circuit courts. There can be no doubt, we think, that all cases, peal from probate to circuit courts, are to be tried anew, as if no judgment had been rendered. The case before us was determined in the circuit court since the Code went fully to operation. But we are unable to determine whether it was tried in the probate court before, or since, as the date upon the transcript is left blank; if since, there could be no doubt that the circuit court committed an error in not trying the case anew, whatever may have been its opinions as to errors in the trials by the probate court. But presuming that the case was tried in the probate court before the Code went into operation, by which practice, the old or the new, should the circuit court have been governed in the determination of the case? We think that this question is directly and fully answered by section 1, Act 83, of the Acts of 1869, where it is declared that, "after the first of June," when the Code went fully into operation, "the Code of Practice shall regulate the practice and all proceedings in the courts of this State, as therein provided." This is certainly as binding upon

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Trammell . The State.

circuit courts as language could make it. It is true, in this case, the Act makes the Code of Practice retroactive, and it may be contended that the appellee is prejudiced in his rights by having his case determined under a different law of proce dure than that under which the suit was instituted. But this position is untenable, for it is well settled, as a general rule, that a right to a particular remedy is a part of the right itself. But this case cannot be brought within the exceptions. Legislative Acts, which are retrospective in their character, are not void, unless they conflict with some constitutional provision, or interfere in some respect with vested rights. See Smith et al v. Bryan, 34 Ill's. 377. Rosier v. Hale, et al 10 lowa 486. Halloway v. Sherman, 12 lowa, 283. McCormick v. Rusch, 15 lowa 181. Rockwell v. Hubbells, adm'r. 2 Douglass, (Mich.) 200. Lord v. Chadbourne, 42 Maine, 441.

The Act, above referred to, is not in conflict with any constitutional provision, nor does it interfere in any respect with vested rights. It therefore ought to be obeyed. It is manda tory, and therefore must be obeyed.

We are of opinion, therefore, that the circuit court erred in not trying the case anew. For this and other errors, the judg ment is reversed, and the cause remanded, with instructions to the court below, to try it anew upon its merits.

TRAMMELL . THE STATE.

MURDER - Verdict should find the degree.--In an indictment for murder, verdict of conviction, which does not find the degree of murder, is s● fatally defective that no judgment can be entered upon it.

Appeal from Ouachita Circuit Court.