Costilla Estates Dev. Co. v. Mascarenas , 33 N.M. 356 ( 1927 )

[6] As we understand the motion for rehearing, it seeks to sustain the exclusion of the judgment roll upon grounds going to the authenticity of the documents comprising it, and even to the sufficiency of the proof that the venue of the cause was ever changed from Taos to Santa Fe county.

The last entry on the docket of the Taos county court was: "July 26. Order changing venue and setting date for trial." On the Santa Fe docket, under the column "Action," appears, "Change of venue brought from Taos county;" and, under the column "Costs," appear certain charges and payments in the matter of costs made to and by both parties "transferred from Taos Co." Under the heading "Proceedings," the first entry is, "12 papers filed." This is under date of August 4, 1905. The purported order changing the venue was produced from the custody of the clerk of the Santa Fe court and identified by him as having been received from his predecessor. It is contended that the entry "12 papers filed" does not identify the order; and that an attempt to identify it by the last entry on the Taos docket failed because the entered date and the indorsed date do not agree. The order offered in evidence bore two indorsements, namely:

"Filed in my office this 4th day of Aug., 1905.

"A.M. Bergere, Clerk."

And:

"Filed in my office Jul. 26, 1905.

"A.M. Bergere, Clerk."

The earlier indorsement, as to month and date, corresponds with the docket entry of the filing of that paper in Taos. The later indorsement corresponds with the entering of the twelve papers on the Santa Fe docket. It is claimed, however, that the date of filing in Taos, as shown by the docket, is 1904, not 1905. The basis of the contention is this: That docket has a column headed "date." Under it appears "1903." Following immediately beneath, in chronological order, are fourteen dates, from March 2 to December 10, upon which divers papers were filed. Then follows "1904"; underneath which appear seven dates, in chronological order, of the filing of papers from January 7 to October 4. Then follows the last entry above quoted; the date being given as July 26, without any change from the last-entered year, 1904. This looks like a mere clerical omission. Where dates are indicated as on this docket, such an omission is of common occurrence. Presumptively papers were entered upon the docket chronologically and with reasonable promptness. If the true date was July 26, 1904, the docket would make it appear that more than two months after venue had been changed, on October 4, 1904, plaintiffs filed in Taos county a reply to the second amended answer, and this was entered on the docket ahead of the order changing venue. The purported order on its face shows that the matter was heard July 25, 1905. It is insisted that, so long as the authenticity of the order is in question, its contents cannot help to settle the date. Counsel overlook another offered document. The clerk of the Taos court issued a certified copy of the order changing venue under his hand and the seal of the court and transmitted the same to himself as clerk of the Santa Fe court. This shows that the matter was heard July 25, 1905. It bears a filing indorsement August 4, 1905, being doubtless one of the "12 papers filed" on that date. No objection is suggested to the competency of this document, and we perceive none. The proof of the change of venue is, in our opinion, conclusive.

[7] It is further contended that the documents offered were insufficiently identified because the signature of the clerk to the indorsements of filing, both in Taos county and in Santa Fe county, was by rubber stamp. This, of course, would not apply to the judgment itself, because it was entered in full upon the journal of the Santa Fe court.

It is urged that the use of a rubber stamp by the clerk was a violation of Code 1915, § 1401, which provides as follows:

"It shall be the duty of the clerk, when any paper is filed in his office, immediately to enter on the back thereof his certificate of the day on which it was filed, in the words: Filed in my office this ____ day of ____, 19__, and sign his name as clerk to the same. But in case he should at any time neglect to do so, it may, at the discretion of the court, guided by the justice of the case, be entered nunc pro tunc. In like manner shall all other matters be performed nunc pro tunc when the ends of justice may require it."

This statute does not require the clerk to write his name; only that he sign it. Generally a signature, if adopted as such, may be printed, lithographed, or typewritten, as well as written. 36 Cyc. 443. The decisions there collected show that signatures not autograph are held sufficient to satisfy a variety of statutory and other requirements. The facts of the filing of these documents, and of their identity as the documents filed, do not depend solely upon the clerk's signature. We have, in addition, the facts of entry on the docket and of their having been produced from the proper custody. According to a former interpretation of this statute, filing is accomplished by delivering to the clerk a paper entitled to filing. That act gives the court jurisdiction to act in regard to it. In re Lewisohn, 9 N.M. 101, 49 P. 909. The statutory duties of the clerk are to note the date on the document (section 1401, supra), and to enter the fact of filing on the docket (section 1405). If he fail to perform these duties, the court may direct their performance nunc pro tunc.

The authenticity of court records is a highly important matter. Any ruling which would impair it and thus destroy the value of such records as evidence in subsequent litigation in the same or other courts would have far-reaching and unfortunate effects. Neither general principles nor the statutory requirement, in our opinion, call for such a holding in this case.

Finding nothing in the motion nor in the argument to change our views, a rehearing is denied. It is so ordered.

PARKER, C.J., and BICKLEY, J., concur.