Opinion
December, 1907.
B.C. Chetwood, for appellant.
Respondent fiiling no brief.
This is an appeal from a judgment dismissing the complaint in an action brought on a foreign judgment, recovered in a "Court for the Trial of Small Causes," tried before a justice of the peace, in the county of Monmouth, State of New Jersey.
A transcript of said judgment, certified by the clerk of that county and of the Common Pleas Court, with a certificate by a justice of the Common Pleas Court and the seal of said court attached, was offered in evidence by the plaintiff and was excluded upon the ground that it did not comply with the provisions of section 949 of the Code of Civil Procedure, which provides the manner in which a transcript from the docket book of a justice of the peace within an adjoining State of a judgment rendered by him shall be authenticated. Appellant contends that the transcript was competent evidence under sections 952 and 953 of the Code, which provide that a copy of a record or other judicial proceeding of a court of a foreign country is evidence, when authenticated by the attestation of the clerk of the court with the seal of the court affixed, or of the officer in whose custody the record is legally kept, under the seal of his office.
In Trebilcox v. McAlpine, 46 Hun, 469-471, it is held "that sections 952 and 953 of the Code of Civil Procedure relate only to the authentication of copies of records, etc., of courts of foreign countries. The Code contains no provision as to the records of courts of other States in this country. Provisions for these are contained in the Constitution and Statutes of the United States."
Section 1, article IV, of the Constitution of the United States, provides: "Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State," and section 905 of the United States Statutes provides the manner in which such acts, records and proceedings shall be proved.
The record offered in evidence by plaintiff would be competent evidence, if authenticated in the manner provided by the United States Statute; but it has not been so authenticated. The statute provides that the record or judicial proceeding shall be proved "by the attestation of the clerk and the seal of the court annexed if there be a seal, together with a certificate of the judge, chief justice or presiding magistrate, that the attestation is in due form."
The action in New Jersey, as appears in the record, was brought in a "Court for the Trial of Small Causes" and tried before a justice of the peace, and the judgment roll was certified by said justice. But the clerk's certificate is made by the "County Clerk of the County of Monmouth," not by the clerk of the Trial Court; the seal attached is the seal of the Common Pleas Court, and the certificate of the justice of the Common Pleas Court is solely to the effect that the attestation is in due form and that the signature "of said County Clerk is genuine."
No statute of the State of New Jersey was introduced in any way connecting the Common Pleas Court or the justice thereof or the county clerk with the proceedings in the "Court for the Trial of Small Causes," or with proceedings before a justice of the peace.
The United States Statute contemplates a certificate by the clerk of the court in which the action was tried, and a certificate by the judge of such court that the attestation is in due form.
In the absence of such authentication the record was properly excluded.
GILDERSLEEVE and BRUCE, JJ., concur.
Judgment affirmed, without costs.