Non-Electric Fibre Manufacturing Co. v. Peabody

Majority

p. 442

Non-Electric Fibre Manufacturing Company, Respondent, v. Royal C. Peabody, Appellant.

Headnote

Evidence—a transcript of a judgment does not establish the existence of a claim against the judgment debtor—effect of the transcript as evidence under section 938 of the Oode of Oivil Procedure.

A transcript of a judgment against- a corporation is not evidence of an outst-and- ' ing. obligation of the corporation, even when coupled with a letter written to the judgment .creditor by the treasurer of the corporation, acknowledging the receipt of a letter from the creditor, and stating: “ 1 will send you a check to-morrow or next day in reply to the same, or as soon as I can get time to get at my papers, which w'iil certainly not be longer than two or three days.”

The transcript of the judgment, under the provisions of section 988 of the Code of Civil Procedure, providing that “ a transcript from a record kept pursuant to law is evidence,- * * * , as if the original was produced,” establishes the recovery of a judgment, but not the cause of action for which such judgment was recovered, ■ '

Appeal by the defendant, Royal C. Peabody, from a-judgment of the Supreme Court in favor, of the plaintiff, entered in thé office of the clerk of the county of Kings on the 24th day of November, . 1897, upon the verdict of a jury rendered by direction of the court and also from an order entered in said .clerk’s office on the 1st day of December, 1897, denying the defendant’s motion for a new trial made upon the minutes.

The action was brought to recover a balance of the defendant’s subscription to the stock of the plaintiff corporation. Among other defenses the defendant alleged that he had been released from his

p. 443

obligations to the corporation by an agreement entered into by all the stockholders.

Frank Harvey Field, for the appellant.

Chas. Colemam, Miller, for the respondent.

This is the second appeal .in this action. The former appeal is reported in 21 Appellate Division, 247. It was taken from a judgment entered on the verdict of a jury, and resulted in a reversal for error in rejecting proof. The facts of the case are fully stated in that opinion.

At the last trial the plaintiff, apparently to meet some suggestions of the opinion on the former trial, contended that there was an outstanding obligation o"f the company, and, to establish this fact, offered in evidence a transcript of a judgment against the company in favor of Daniel A. Carpenter. The defendant objected to the evidence as incompetent, irrelevant and immaterial, and not within the issues of the case, but it was admitted and the defendant excepted. At a later stage of the case, the defendant, with the permission of the court, stated a further objection to the introduction of the transcript, on the ground that-it was. no evidence of the judgment, and that this was not the proper way to prove a judgment. The court overruled the objection and the defendant again excepted. The court directed a verdict for the plaintiff.

There is no other evidence in the record as to any judgment, or that there were any creditors of the corporation, and we . have no means of ascertaining upon what the judgment named in the transcript was based. There is in evidence a letter from the defendant to Mr. Carpenter, in which he says :

“ I beg to acknowledge receipt of your favor of Feb. 1st, and beg to say that I will send you a check to-morrow or next day in reply to the same, or as soon as I can get time to get at my papers, which will certainly not be longer than two or three days.

“ Respectfully yours,

“R. C. PEABODY, Treas”

But this does not prove any cause of action or any valid claim against the company, nor any debt upon which the alleged judgment was rendered. Ye assume that the plaintiff offered the tran

p. 444

script in evidence to meet a suggestion in .the former opinion, at page 251, where it was said : “ It is quite true that directors of a going concern having creditors, contracts, stockholders, and a business, could not by agreement, among themselves release each other from their obligations to the company, to the prejudice of the company, its stockholders and creditors.”

The difficulty is that the proof offered does not meet the suggestion of the former opinion. There is no evidence of any valid claim against the company. The rendition of a bill by Carpenter would not prove it. The acknowledgment of some unspecified claim in the defendant’s letter and his promise to pay the claim referred to therein, although- he appended the word' •“ Treas.” to his signature, does not prove it; and neither the judgment, nor the existence of the original claim, is anywhere alleged in the pleadings. The defendant had no notice by the pleadings of the plaintiff’s intention to-prove either any outstanding claim or the jjudgment itself. He might have desired to attack the judgment, because of jurisdictional defects, collusion or fraud in obtaining it.

The plaintiff, without citing authority, contends that section 933 of the Code of Civil Procedure authorizes the admission' of the transcript of a judgment to prove the judgment itself. This section reads : “A -transcript from a record kept, pursuant to law, * * * is evidence, as if the original was produced.”

What is the original, referred to in the .transcript? ' Only that a judgment for some cause of action has been docketed. That, and that only, .is the evidence which the transcript affords. It proves no other fact than the recovery of a judgment,' not what such judgment was for.

Mr. Abbott, in his Trial Evidence (p. 535), says : “ There are four methods of proving a judgment, viz.: By producing, 1, a certified copy; 2, a sworn copy ; 3, an exemplification; and 4, the original record.”

We think the admission of the transcript of the judgment, instead of the judgment roll itself, without other evidence, was error. The judgment must be reversed, costs to abide the event.

•All concurred, except Cullen, J., absent.

Judgment reversed and new trial granted, costs to abide the event.