Opinion
January Term, 1870.
In an action upon a former judgment, the record of the judgment is the proper evidence thereof; and its production cannot be dispensed with, or supplied by any other evidence.
Where the record of a judgment has been destroyed, the first step towards obtaining a remedy, is by proceeding in the Court where it was given, to the end that the record may be supplied.
ACTION for money due by judgment, tried upon demurrer to the complaint, by Mitchell, J., at Fall Term 1869 of BURKE (78) Court.
Folk for the appellant.
Furches contra.
The complaint alleged that a judgment had been obtained by the plaintiff against the defendants, at August Term 1861 of Burke County Court; that the record thereof was destroyed by the Federal forces under General Stoneman in the Spring of 1865, but that the plaintiff had a "certified memorandum of said judgment under the hand of the Clerk, dated March 29th 1865, showing the date and amount of the judgment, etc., which he stands ready to produce, together with other proof, if necessary, as evidence of his debt."
The defendant demurred, and assigned as cause, that it appeared by the complaint that there is no record of the said supposed recovery, etc.
The demurrer was overruled, and the defendant appealed.
In an action on a former judgment, the record of the judgment is the proper evidence thereof. Its production can not be dispensed with, or supplied by any other evidence. The reason is, that upon plea of nul tiel record, the court decides upon the inspection of the record itself.
The plaintiff's remedy in this case, was, upon notice to the defendants, a motion in the original suit, to have a record made of the judgment, in place of that which was destroyed; and then to offer the record in evidence in this suit. It was neither necessary nor proper to make profert of the judgment, but to refer to it as of record, prout patet per recordum; but instead of such reference, it is stated in the complaint as an excuse for not making profert, that the record had been destroyed.
It is not desirable that the merits of a cause should be (79) prejudiced by technicalities, and the courts are liberal in allowing amendments to reach substantial justice. If upon the coming in of the demurrer, the plaintiff had obtained leave to amend his complaint, so as to refer to the judgment as "remaining of record," and upon motion in the original cause had made a record, it might have been offered on the trial, but as the plaintiff joined in the demurrer, we are obliged to say that it ought to have been sustained. There is error.
Per curiam.
Judgment reversed.