Ira Stout, appellant v John Slattery, appelle

Source: Records Of Cases Illinois
Written: 1850

Ira Stout, appellant, v. John Slattery, appellee.

Appeal from Adams.

If a party shows himself entitled to the remedy to be obtained by certiorari,
the filing of the papers from the justice, before the plaintiff appears in the
Circuit Court, dispenses with the necessity of issuing the writ. (a)

If a notary public administer an oath, his signature to the jurat, without his
seal of office, will be sufficient within the county of his residence; if to
be used out of the county, his seal of office, or some other evidence of his
official character, will be indispensable. (b)

Our statute does not make it the duty of a notary to verify his acts by his
seal, except in the acknowledgment of deeds. (c)

The Circuit Court of Adams county, Minshall, Judge, presiding, at May term,
1849, upon motion of the appellee, quashed the certiorari issued on behalf of
the appellant. The facts of the case are fully stated in the opinion of the

Warren & Edmunds, for appellant.

Williams & Lawrence, for appellee.

Treat, C. J. Slattery sued out an attachment against Stout, from a justice of
the peace. There was service on a garnishee, and a publication of notice to
the defendant. On the fifth of February, 1849, a judgment was entered against
the defendant, for $94.62, and, on the twelfth of the same month, a judgment
was entered against the garnishee in the same amount. On the sixteenth of
March, 1849, the defendant obtained an order for a certiorari, and filed the
same, and an appeal bond, in the Circuit Court. He stated, in his petition for
the certiorari, that, by reason of absence from the state, he had no actual
knowledge or notice of the pendency of the attachment, or of the rendition of
the judgments therein, until the time allowed for an appeal had expired, and
that he was not in any manner indebted to the plaintiff. The jurat to the
petition was subscribed, "Calvin A. Warren, notary public for said county of
Adams." No writ of certiorari was ever issued.

A transcript of the proceedings before the justice was filed in the Circuit
Court, on the fifth of April, 1849. In May, 1849, the plaintiff entered a
motion to dismiss the appeal, which was sustained by the court; and that
decision is now assigned for error.

This record presents but a single question, which did not arise, and was not
decided, in the case of Gallimore v. Dazey, ante, p. 143. On the principles of
that case, the defendant clearly showed himself entitled to the remedy by
certiorari; and the filing of the papers from the justice, before the
plaintiff appeared in the Circuit Court, dispensed with any necessity for
issuing a writ of certiorari.

The notary public, before whom the petition was verified, did not affix his
seal of office to the jurat, and it is insisted, that his omission to do so,
presents an insuperable objection to the proceedings; in other words, that a
notary can perform no official act without evidencing it by his notarial seal.
This position cannot be maintained. We are clearly of the opinion, that the
failure of the notary to annex his official seal to the jurat, does not
vitiate the proceedings based on the petition. Within the county of Adams, the
addition of the seal was not necessary. If the petition was to be used in
another county, the seal of the notary, or some other evidence of his official
character, would be indispensable. In a case like this, the seal docs not give
validity to the act of the notary. It is only evidence of his authority to
administer the oath. It is the usual mode of authenticating the act, but not
the exclusive one. This is not like the case of process, which the law
provides shall issue under the seal of the court; nor the case of the
performance of an act by an officer, which the law declares shall be done
under his official seal. Our statute does not make it the duty of a notary to
verify his acts by his notarial seal, except in the single instance of the
acknowledgment of a deed: R. S., ch. 75; ch. 76, sec. 3; ch. 24, sec. 16. The
rules of the common law may perhaps require some particular acts of a notary
to be evidenced by his official seal, but the taking of affidavits is not one
of them. The power to administer oaths is expressly conferred by statute, and
is not one of the incidents of the office. The affixing of the notarial seal
is not essential to the validity of his acts, except in cases where it is
required by some rule of the common law, or some provision of the statute. In
all other cases, his official acts, at least within the state, are none the
less valid, because they are not authenticated by his notarial seal. The only
difference relates to the proof of his authority. If the act is not evidenced
by the seal of the notary, his signature and official character must be
established by some other legitimate evidence. Clerks of courts are in the
constant habit of taking affidavits, without attaching the seal of the court
to their jurats, and the validity of their acts and the propriety of the
practice, have never been questioned. It would hardly be contended that
perjury could not be assigned on such an affidavit, if the contents were
material, and the party knew them to be untrue. And there is no difference in
principle between the two cases. There is no more occasion for the seal in the
one case than in the other. The oath is legally administered in either case.
It is only when it becomes necessary to prove the making of the oath, that the
seal of the officer, or some competent evidence of his authority, must be
produced. The case of the Fund Commissioners v. Glass, 17 Ohio, 542, is an
authority very much in point. A statute of Ohio made it the duty of each
notary to provide a notarial seal, with which to authenticate his official
acts. By a subsequent statute, notaries were authorized to take the
acknowledgment of deeds, and were required to make certificates of
acknowledgment, and subscribe the same. It was held, that they need not affix
their notarial seals to the certificates. The court said: "Under this law, the
acknowledgment of this deed was taken, and to the certificate of
acknowledgment the officer taking it did subscribe his name. This was all
which the law, under which he was acting, required him to do." It has been
decided that a Circuit Court will take notice who are justices of the peace,
for the county in which it is held; and proof of the official character of
these officers is never required, unless that particular matter is distinctly
in controversy: Shattuck v. The People, 4 Scam., 477; Irving v. Brownell, 11
Ill., 402. The rule is one founded in reasons of public convenience, and may
with equal propriety be extended to notaries.

The judgment of the Circuit Court must be reversed, with costs, and the cause
remanded for further proceedings.

Judgment reversed.

(a) Gallimore v. Dazey, ante 143, and note.

(b) Rowley v. Berrian, post 198; Dyer v. Flint, 21 Ill.., 80, accord. The
principal stated in the head note is true also under the law of 1867; Thelman
v. Burg, 73 Ill., 293. See R. S. 1874. ch. 99, sec. 7.

(c) A notary public cannot take the acknowledgment of a deed, unless he
authenticates it by his official seal: Mason v. Brock, post 273.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill.


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