Brown vs. Driggers et al.

Supreme Court of Georgia1878-01

60 Ga. 114

Summary · law.co

Holding. The judgment was reversed because the trial court erred in admitting a certified copy of the homestead plat without requiring proof that the original document was lost, destroyed, or otherwise unavailable, since the plat was a private title document belonging to the complainants rather than an office record required by law to remain in official custody.

Mrs. Driggers and her children sued to invalidate a deed that Mark Driggers and his wife had conveyed to Brown, arguing that the land in question was the family's homestead and therefore protected from such a transfer. A jury ruled in favor of the Driggers family, and the court entered a decree accordingly. Brown requested a new trial, which was denied, prompting this appeal.

The sole issue on appeal concerned the admission of evidence: whether the trial court properly allowed a certified copy of the homestead plat from the superior court clerk's office without requiring the original document. The appellate court determined that the plat should be treated as a private document belonging to the Driggers family as evidence of their title, rather than as an official government record. Because no law required such documents to remain in the clerk's office, and the record showed no proof that the original was lost or destroyed, the certified copy was inadmissible as secondary evidence without first accounting for the primary original.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a certified copy of a homestead plat from a clerk's office is admissible as primary or secondary evidence
Whether homestead plats are required by law to remain in government offices or are appropriately held by the homestead occupants
Whether secondary evidence of a document may be admitted without proof that the original primary evidence has been lost or destroyed

Procedural posture

The plaintiff-appellee brought a bill to set aside a deed affecting claimed homestead property; a jury found for the plaintiffs, the trial court denied the defendant-appellant's motion for a new trial, and the defendant appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Jackson, Judge.

This was a bill filed by Mrs. Driggers and children, to set aside a deed made by Mark Driggers and wife to Brown, for a tract of land alleged to be the homestead of the family. The defendant answered denying that the homestead was valid, and putting in issue the allegations of the bill in general.

The jury, under charge of the court, found for complainants ; a decree was entered accordingly, and Brown moved for a new trial. The motion was overruled and he excepted.

The case turns on a single point. The court admitted in evidence a certified copy of the plat of the homestead from the clerk’s office of the superior court of Bulloch county, and the question is, was it properly admitted over the objections of the defendant.

That depends, in our judgment, solely upon the question whether the original was an office paper, or the private muniment of title of the complainants. If it was an office paper it was properly admitted without the application to the ordinary and without the other papers in his office ; if it was a private paper belonging to the complainants as evidence of their title, the original in their possession, or which should be in their possession, is the better and higher evidence, and the copy record is not admissible until that original is accounted for.

Section 3816 of the Code is in these words: “ The certificate or attestation of any public officer, either of this state or any county thereof, shall give sufficient validity or authenticity to any copy, or transcript of any record, document, paper, or file, or other matter or thing, in their respective offices, or pertaining thereto, to admit the same in evidence in any court of this state.”

The next section, 3817, declares that “such exemplifications shall be primary evidence as to all records, or other things required by law to remain in such offices, but only secondary evidence of such documents as, by law, properly remain in possession of the party.”

The act of 1877, page 18, makes this “record or certified transcript of the same, etc., competent evidence in all the courts of this state ”, but whether primary or secondary evidence is not declared; so that whether it is primary or secondary evidence still depends on the sections of the Code just cited.

There is no law which requires the original schedule and plat, marked approved by the ordinary, to remain in the office of the clerk of the superior court; on the contrary, it would seem to be, by law, appropriately left with the occupants of the homestead as their title, or the evidence thereof, to their home, and the articles exempted therein. And such we learn is the practice in the courts of ordinary and with the clerks of our superior courts. The record does not disclose the fact that the original was destroyed, or lost, or-otherwise unavailable, so as to introduce the secondary evidence. "Without such proof of loss or destruction of the primary evidence, the secondary was inadmissible. There must therefore be a new trial.

Judgment reversed.