Ponder et al. vs. Shumans

Supreme Court of Georgia1888-03-26

80 Ga. 505

Summary · law.co

Holding. The trial court erred in rejecting the letters testamentary as evidence. The judgment is reversed.

The plaintiffs brought an ejectment action to recover land, relying on letters testamentary issued in 1851 to the executors of Amos Ponder's estate. The trial court rejected these letters as evidence, citing three defects: unclear origin from the Monroe County court of ordinary, no evidence of the ordinary's or clerk's signature, and absence of a court seal. The appellate court disagreed, finding that at the time of issuance in 1851, no general law required the court of ordinary to maintain or use an official seal—such a requirement came later with an 1852 statute. The court noted that the clerk's signature alone was sufficient authentication under state law and precedent.

The court applied several presumptions favoring the validity of the letters. First, the signature of a state officer commissioned by the governor is presumed genuine unless proven otherwise, and the burden falls on whoever challenges it. Second, public officers are presumed to perform their duties correctly. The letters themselves contained recitals indicating proper issuance by the court of ordinary. Because the trial court erred in excluding this evidence, the judgment was reversed despite the resulting nonsuit being technically proper once the evidence was excluded.

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

Key issues

Authentication of letters testamentary without a court seal
Sufficiency of a clerk's signature as evidence of official documents
Presumptions of authenticity and proper conduct by public officers
Retroactive application of seal requirements to pre-1852 documents

Procedural posture

The trial court granted a nonsuit after sustaining an objection to the plaintiffs' evidence of letters testamentary in an ejectment action, and the plaintiffs appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Blandford, Justice.

This was an action of ejectment to recover a certain lot of land, and was brought in the name of John Doe on the demise of O. H. P. Ponder and J. W. H. Ponder, the executors of Amos Ponder, deceased, against Richard Roe and William Shumans, tenant in possession. Upon the trial, the plaintiffs tendered in evidence a certain document purporting to be letters testamentary granted by the court of ordinary of Monroe county, to O. H. P. Ponder and J. W. H. Ponder, as the executors of the last will and testament of Amos Ponder, deceased. This document was objected to upon the grounds (1) that the letters did not appear to have emanated from the court of ordinary of Monroe county; (2) that there was no evidence that the letters were signed by the ordinary or the clerk of the court of ordinary; (3) that there was no seal of said court attached to and authenticating the same. The court sustained the objection and excluded the letters testamentary.

These letters were granted in March, 1851, and were in the usual form of letters testamentary prior to that time, or the form which, so far as we know, had been usually issued from the time of the passage of the act of 1799, constituting the justices of the inferior court a court of ordinary, and authorizing them to elect a clerk of that court and certify such election to the governor, and requiring the governor to commission the clerk, and prescribing his oath of office, duties, etc. The signature of Mr. Elbridge G. Oabaniss, clerk of the court of ordinary of Monroe county, is affixed to these letters, his certificate stating: “ In testimony whereof I have officially set my hand and seal, this 3d day of March, 1851, and in 74th year of American independence. (Signed) Elbridge G. Oabaniss, Clerk Court Ordinary, (L. S.)” At that time there was no general law requiring the court of ordinary to have and use a seal of office. That was prior to the act of 1852, creating the court of ordinary as it now exists and providing for a seal. We find in 22 Ga. 112, in the case of Witzel vs. Pierce, admr, (an ejectment case) that letters of administration were tendered in evidence, purporting to be issued from the court of ordinary of Decatur county, and certified thus: “ Given under my hand and seal of office, this August the 7th, 1854. (Signed) Joseph Gar, Ordinary, D. c,” without any seal. This court held that that was sufficient without a seal. And such is our understanding of the law.

By express act, the signature of the clerk, without more, is sufficient as to the exemplification of the records of his office in this Slate. This court is bound to take notice of who are the public officers of this State, where the law requires such officers to be commissioned by the governor; and when any suggestion is made that the signature of such officer is not genuine, it is incumbent on him who makes the suggestion to prove it, the presumption being that it is genuine.

There is another presumption in favor of the public officers of this State, and that is, that they do their duty; and the presumption is that this clerk of the court of ordinary did his duty in issuing these letters testamentary. The letters themselves declare that they were issued by the authority of the court of ordinary of that county, and there are various recitals in the letters showing that they were properly issued; and until the contrary appears, this court will presume that they are true.

We think that the judge in the court below erred in rejecting these letters testamentary. After having rejected this testimony, he awarded a nonsuit. This testimony being out, the nonsuit was proper; but we think he erred in rejecting the testimony, and the judgment of the court below is therefore reversed.