# Lummus Cotton Gin Co. v. Arnold

> Tennessee Supreme Court · April 15, 1924 · 151 Tenn. 540

URL: https://www.frixlaw.com/law-library/cases/8302457

## Case

- **Full name:** Lummus Cotton Gin Co. v. W. R. Arnold
- **Court:** Tennessee Supreme Court
- **Decided:** April 15, 1924
- **Citations:** 151 Tenn. 540
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Hall
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8302457

## Opinion text

RbspoNsb to Complainant’s Petition to Reheak.
Complaintant has filed a petition to rehear in this cause, urging that the court was in error in holding that complainant was not entitled to recover of defendants because it was doing business in Tennessee, and had failed to show a compliance with the statutes relating to foreign corporations. In other words, that the court, in view of the state of the pleadings, committed error in holding that the burden of proof was on complainant to show compliance.
The court held that the facts established by the proof showed that the sale and delivery of the ginning outfit or machinery by complainant to the Farmers ’ Co-Operative Gin Company, a corporation, of which defendants were directors, was an intrastate transaction; and defendants having denied in their answer that complain *556 ant bad complied with the statutes relating to foreign corporations, at the time of the sale of the machinery in question, and at the time of the execution of the notes sued on, the burden of proof rested upon it to show compliance.
We concede that this was error. We proceeded upon the theory that complainant’s bill, not only alleged that it was a foreign corporation, but that it had qualified to do business in this State. We find, however, upon a reexamination of the record, that complainant’s bill does not contain any such allegation. It does allege that com plainant is a foreign corporation, but does not allege that it had qualified to do business in this State. The denial in defendants’ answer that it had qualified to do business in this State was therefore in the nature of an affirmative plea, and, with chapter 184 of the Public Acts of 1919 out of the way, the burden would have rested upon defendants to prove noncompliance. ITowever, we think the act referred to has changed the rule which existed in this State prior to its passage. Section 1 provides :
“That the secretary of State shall have bound and published with the Public Acts of the present General Assembly a cértified alphabetical list of all foreign corporations which shall have filed copies of their charters in his office duly authenticated or certified as required by law, and that such published lists shall show, under appropriate headings, the name of each corporation, the State where chartered, and the date of the filing of a copy of its charter in his office; and that he shall likewise have bound and published with the Public Acts of *557 each subsequent regular session of the General Assembly, a certified alphabetical list of all such foreign corporations as shall have filed such copies of their charters in his office since the close of the last preceding- published list, and that such published lists shall be prima-facie legal evidence of the existence of the corporations named therein, and of their having filed their charters in the office of the secretary of State as required by law, and that the courts of this. State shall take judicial notice thereof, as they now take notice of the lists of domestic corporations bound and published with the acts of the General Assembly.”
Pursuant to that act the secretary of State published with the Public Acts of 1919 a list of all such foreign corporations having complied with the laws of this State, and annexed thereto his certificate under the great seal of the State, which said certificate is in words and figures as follows:
“I, Ike B. Stevens, secretary of State of Tennessee, do hereby certify that the foregoing is an alphabetical list of all foreign corporations which have filed copies of their charters in my office, duly authenticated or certified as required by law, showing the name of each corporation, the State where chartered, and the date of filing a copy of his charter in my office.
“In witness whereof, I hereunto set my official signature and affix the great seal of the State of Tennessee, at office in Nashville, this 1st day of May, 1919.
“[Signed] Ike B. SteveNS,
“Secretary of State.”
*558 Similar lists were published and certified according to law by the secretary of State under the great seal of the State with the Public Acts of 1921 and 1923. In none of these lists does the name of complainant appear.
The contract out of which the present suit grew is dated May 7, 1920. The notes sued on were dated September 20, 1920. Complainant’s bill was filed October 10, 1922.
In Dunlap v. Sawvel, 142 Tenn., 707 , 223 S. W., 145 , this court said: “It is a well-established law in Tennessee that (the presumption is that) every sworn officer does his duty, and in the absence of proof to the contrary this presumption will prevail” — citing Rogers v. Jennings, 3 Yerg., 308 ; Loyd v. Anglin, 7 Yerg., 428 , 431; Mitchell v. Lipe, 8 Yerg., 179 , 29 Am. Dec., 116 ; Frierson v. Galbraith, 12 Lea, 129 ; State v. Myers, 85 Tenn., 203 , 5 S. W., 377 .
To the same effect is the rule announced in Beasley v. Smith, 3 Humph., 406 ; Gibson v. Martin, 7 Humph., 127 ; Caruthers v. Harbert, 5 Cold., 362 , 98 Am. Dec., 421 ; Maxwell v. Jonesboro, Corp., 11 Heisk, 257.
In Caruthers v. Harbert, supra, it was held that the presumption of law is that a public officer has done his duty correctly (unless some statute or rule requires a particular mode), until the contrary appears.
The presumption is that every sworn officer does his duty, and therefore the recital in a sheriff’s deed of land sold by him “that he legally advertised and made known” the time and place of sale is prima-facie evidence of the fact of advertising and otherwise making known the sale by notice to the judgment debtor in possession. *559 Rogers v. Jennings, supra; Loyd v. Anglin, supra; Mitchell v. Lipe, supra.
In the absence of proof to the contrary, it is to be presumed that the official act of an officer in another state has been performed, as required by the law of that state. Frierson v. Galbraith, supra.
A notary public is a public officer, and, when he certifies that he had done a public act, it must be presumed that he has done it correctly, unless some statute or rule requires a particular mode, until the contrary appears. This presumption may be rebutted, but the burden of proof is upon the one denying its correctness.
In Chesapeake & Delaware Canal Company v. United States, 153 C. C. A., 593 , 240 F., 907 , it was held that the fact that the records of the government failed to show payment of certain dividends by the defendant was evidence of the fact that said payment had not been made. In that case the court said:
“As such records are usually made by persons having no motive to suppress or distort the truth or to manufacture evidence, and, moreover, are made in the discharge of a public duty, and almost always under the sanction of an official oath, they form a well-established exception to the rule excluding hearsay, and, while not conclusive, are prima-fade evidence of relevant facts. The exception rests in part on the presumption that a public officer charged with a particular, duty has performed it properly. As the records concern public affairs, and do not affect the private interest of the officer, they are not tainted by the suspicion of private advantage. ’ ’
*560 Mr. Wigmore, in his work on Evidence, vol. 3, section 1633, snbsec. 6, p. 391, announces the rule thus: “Since the assumption of the fulfillment of duty is the foundation of the exception, it would seem to follow that, if a duty exists to record certain matters when they occur, and if no record of such matters is found, then the absence of any entry about them is evidence that they did not occur; or, to put it in another way, the record, taken as a whole, is evidence that the matters recorded, and those only, occurred.”
In R. C. L., vol. 10, section 332, p. 1125, it is said:
“When persons in public office are required by statute, or by the nature of their.office, to write down particular transactions occurring in the course of their public duties and under their personal observation, such records are generally admissible in evidence. When such entries are made by authorized public' agents in the course of public duty, and relate to matters in which the whole public may be interested, it is thought that the oath and cross-examination may be dispersed with. Such entries are generally made by those who can have no motive to suppress the truth, or to fabricate testimony. Moreover, in many cases they are made in the discharge of duty, pursuant to an oath of office. And since these are the grounds of admission there seems to be no good reason why the public records of another State or country should not be admitted equally with the records kept by officers within the State; it appearing that the foreign record is kept pursuant to law.”
It is expressly provided by the statute above referred to that, when the name of the foreign corporation ap *561 pears in the list required to be published by the secretary of State, it shall be prima-facie legal evidence of the existence of the corporation named therein, and of its having’ filed its charter in the office of the secretary of State as required by law, and that the courts of this State shall take judicial notice thereof. While it is true that the statute does not expressly provide that the failure of the name of a foreign corporation to appear in such published list shall be prima-facie evidence that it has not filed its charter in the office of the secretary of State as required by law, such is the clear implication of the statute, and such published list would mean nothing unless the statute be so construed.
It would have been wholly unnecessary to have enacted a statute requiring the secretary of State to publish a certified alphabetical list of all foreign corporations which shall have filed copies of their charters in his office duly authenticated, and that such published list shall be prima-facie legal evidence of the existence of the corporations named therein, and of their having filed their charters in the office of the secretary of State as required by law, and requiring the courts of this State to take judicial notice thereof, unless it was intended that the failure of the name of a foreign corporation to appear in said list shall be prima-facie evidence that it has not filed a copy of its charter in the office of the secretary of State as required by law, because, before the enactment of the statute, in the absence of proof to the contrary, the presumption was that the corporation had complied with our statutes relating to foreign corporations.
The petition to rehear is denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8302457. Public record. Not legal advice.