Lee's Administratrix v. Lee

Ryland, Judge,

delivered the opinion of the court.

This was an action by the administratrix of Archelaus Lee, deceased, against Giles Lee,- for the price of some mineral ashes sold and delivered to the defendant.

The defendant, Giles Lee, filed his answer denying his indebtedness to the estate of Archelaus Lee, deceased, denying, his purchase of any mineral ashes or other property or goods *533 of Rebecca Lee or of Archelaus Lee, deceased, and also sets up in offset a debt due from the intestate to the defendant.

The plaintiff obtained leave and amended her petition. She changed her cause of action, declaring for goods of the plaintiff, as administratrix, converted by the defendant after the intestate’s death. That is, the action was changed from the old action of assumpsit, as formerly known to us, into the action of trover. The defendant claimed the ashes under a purchase at an execution sale of intestate’s property. After the change of the action, the court, on motion, struck out from the defendant’s answer the set-off. At the trial, the defendant gave in evidence a transcript of a judgment of the Circuit Court of Jefferson county, state of Missouri, upon an appeal from a justice’s court, in which it appears that William Boyd and Thomas Boyd were plaintiffs, and Archelaus Lee and Lewis H. Lee defendants. This transcript showed that the parties appeared and went to trial; there was a verdict and judgment; on this judgment an execution issued. The returu of the execution shows the sale of a lot of mineral ashes, and the purchase thereof by Giles Lee. After the case was concluded, the court withdrew from the consideration of the jury the transcript of the record, on the motion of the plaintiff’s counsel, because it did not purport to be the whole record in the cause.

Exceptions were taken to the various rulings of the court during the progress of the trial. The jury found a verdict for the plaintiff for five hundred and twenty dollars. A motion to set the verdict aside and grant a new trial being overruled, the defendant brings the case here by appeal.

The transcript of the record of the judgment of Boyds vs. Lees, in the Circuit Court of Jefferson county, was proper evidence, and it should not have been withdrawn from the jury. This presented enough of the record to be allowed admission as evidence. Here was the appearance of parties, a jury, a verdict, a judgment, and an execution and return thereon. The case was taken by appeal from a justice of the peace. There was no necessity to copy the entire transcript of the justice. *534 Here was enough transcribed and certified to render it evidence for the defendant.

Where the action is brought by the officer for goods taken from his 'possession, which he had before levied on by fieri facias, it is not necessary for him, in order to support his action, to offer more than the execution, and prove the levy and seizure thereunder, without a copy of the judgment even. (Barker & Knapp v. Miller, 7 Johns. Rep. 196. 7 Johns. Rep. 32.) “It is a general rule that records, when used in evidence, must be produced entire. But this rule is laid down with some exceptions and limitations. The reason assigned for it is, that the part of the record which is lacking, may give the rest a different meaning. Where a record is -used as evidence, to prove the facts therein contained, the rule well applies ; but where it is only used to show the fact that there, was sucha judgment, then so much of the record as is relevant is frequently permitted to be used. Here, the fact to be shown was, that there was such a judgment to warrant the execution, and enough of the record is produced to establish 'that fact.” (McGuire v. Kouns, 7 Monroe, 386.) Here, the record shows that the parties appeared, a jury trial, a verdict, a judgment and execution ; that is sufficient. The object was not to prove the contents of a record, but to show that there was a judgment, in order to support the execution. There was no necessity, then, for any more of- the record being produced. “In trespass against the plaintiff of a former action, or against a stranger, or where the action is brought by a stranger, whose goods have been wrongfully taken by the sheriff under execution issued against another person, the sheriff, or his officers justifying under the process, will be held also to prove the judgment upon which it issued.” (2 Greenl. Ev. § 629. Martin v. Podger et al., 5 Burrow, 2633.) Lord Mansfield held that, where the action is brought by a stranger, the judgment must be proved, saying, “ the general apprehension is, that it is necessary to produce a copy of the judgment,” and the rest of the court concurred with him.

*535 There is error, therefore, in the ruling of the court in withdrawing said record from the jury.

In regard to the instructions, those given for the plaintiff are not liable to any serious objection. The instruction asked by defendant, in regard to the sale by the sheriff, and the purchase by the defendant of the mineral ashes, upon the next trial, when the record of the judgment against the Lees in favor of the Boyds, shall be before the jury, ought to be given, or some such instruction, putting the case properly before the jury. There is nothing in the other instructions which the court refused to give worthy of our attention.

So far as regards the act of the court in permitting the plaintiff to amend her petition, by even changing her entire eause and ground of action, we cannot say that such ruling of the court is an improper exercise of discretion. These matters of amendment are peculiarly within the discretionary powers of the inferior courts, and we think justice will be promoted by a liberal exercise of this power. Such amendments are always made on terms and cannot possibly do much harm. Here, the duty of the administratrix, for .aught that appears to us, may have required this amendment in order to save the assets of the estate and to have the funds properly distributed among the creditors, rather than permit one to set-off his own debt, because the form she first adopted, in seeking to recover from him, allowed of such a set-off.

Upon the whole case then before us, we think the judgment below must be reversed for the erroneous act of the court in withdrawing from the jury the record of the judgment of Boyds vs. Lees, above mentioned. The other judges concurring, the judgment is reversed and the cause remanded.