Railway v. Seymour. JOUROLMAN, WELCKER & HUDSON, and D. D. ANDERSON, for Railroad, JOHN P. RODGERS, J. O. SHARP, TEMPLETON & LINDSAY, for Seymour. MR. JUSTICE SHIELDS delivered the opinion of the Court. This action was brought by Arminda Seymour as administratrix, in the circuit court of Union county, to recover damages for the death of her intestate, caused by the wrongful act of the plaintiff in error, and is the second suit begun by her for that purporse. The first suit was brought in the same court, and removed by the railway company to the circuit court of the United States for this district upon the ground of diverse citizenship, where she dismissed it more than one year after the action accrued. It is averred in the declaration, in order to avoid the bar of the statute of limitations, that the first suit was brought within one year after the action accrued, and the present one within one year after the dismissal of the former in the federal court. The defendant in error, for the purpose of proving these material averments, was allowed to introduce parol evidence of the contents of the original papers filed in the first suit in the circuit court of Union county, the originals being lost or mislaid, and a transcript of the federal court judgment of dismissal, over the objections Railway v. Seymour. of the plaintiff in error that the primary and best evidence of the record of the former suit was the record in the circuit court of the United States where the final judgment in it was entered, or, if mistaken in this, that that record was the best secondary evidence of the contents of the lost papers in the State court, and must be produced or accounted for before parol evidence could be admitted; and that the copy of the judgment dismissing the case in the federal court was only a part of the record in the case. These objections should have been sustained. When it appears that a transcript of a lost record, previous to its loss, in a proceeding authorized by law, has been filed in another court, and this is known or should be known to the party offering to prove the record, the presumption is that it remains in that court, and it is the best secondary evidence of the contents of the original record, and must be produced, or its absence explained, before parol evidence can be heard. Rhea v. McCorkle, 11 Heisk., 416; Lane v. Jones, 2 Cold., 322. The other objection to this evidence is the controlling one. The record in the federal court is the primary evidence of the former suit, and all other evidence of it is secondary. The record of the court where the final judgment in any case is entered, whether that court obtained jurisdiction by a change of venue, transfer from some other court on account of the incompetency of the presiding judge, removal from a State court under the act of congress, as in this case, or by proceedings in error, Railway v. Seymour. is the primary evidence of the contents of the whole record, and a transcript of it must be produced, or its abence accounted for, before any other evidence, even the original papers in the court where the suit was brought, can be introduced to establish or prove its contents. This is nothing more than an application of the elementary rule that the best evidence of which a case in its nature is susceptible must be produced. 1 Greenleaf on Evidence, section 82; Pharis v. Lambert, 1 Sneed, 228; Bates v. Russell, 5 Sneed, 222; Elliott on Evidence, sections 16, 205. The condition of the record at the time the case was finally disposed of can only be shown by the record of that court. It often happens that portions of the record made in the court of original jurisdiction are changed by amendments which the minutes of the court of final judgment do not fully show, and a full and correct record of the case can only be obtained from the court entering final judgment. There is no rule of the common law, or statute, providing for the certification of portions of a record by clerks of the different courts in which a case has pended. It is true that the clerk of each court may certify to the correctness of a transcript of the record therein, but no one is authorized to certify that the transcripts from the several courts are of the same case, or constituted the entire record in the case. Railway v. Seymour. The transcript of the judgment of the federal court was also incompetent, because only a part of the record to be proved. Willis v. Louderback, 5 Lea, 562; Brady v. White, 4 Baxt., 382. This incompetent evidence being excluded, there is no evidence in the record to prove that the first suit was brought within one year next after the cause of action accrued, and this one within one year after that was dismissed. For these errors, and others disposed of orally, the judgment of the circuit court must be reversed, and the case remanded for a new trial. Wyler, Ackerland & Co. v. Blevins. WYLER, ACKERLAND & Co. v. BLEVINS. (Knoxville. September Term, 1904.) 1. GARNISHMENT. Proper practice where inconclusive answer of garnishee is indeterminate. Where the amount in controversy is less than one thousand dollars and the answer of the garnishee is indeterminate, the proper practice is, not to strike the answer, which is not conclusive, from the files, but to summon the garnishee before the court for further examination, and additional evidence may be heard if necessary to a full determination of the matter. Code cited and construed: Sec. 4831 (S.); sec. 3816 (M. & V.); sec. 3103 (1858). Cases cited: Jones v. Pearce, 12 Heisk., 281-287; Moore v. Green, 4 Humph., 301; Pickler v. Rainey, 4 Heisk., 340; Foster v. Saffell, 1 Swan, 90. 2. SUPREME COURT. May conduct examination of garnishee in aid of its final process. It is well settled that the supreme court has jurisdiction to conduct an examination of a garnishee in aid of its final process and the examination will be had before the clerk of the court in the presence of counsel for the parties, and also of the defendant debtor, if he desires to intervene. Code cited and construed: Sec. 6336 (S.); sec. 5253 (M. & V.); sec. 4503 (1858). Cases cited and approved: Newman v. Justices, 1 Heisk., 787; McIntosh v. Paul, 6 Lea, 45; Dodds v. Duncan, 12 Lea, 733; |