Lombardo v. Ferguson

Cope, J. delivered the opinion of the Court Field, C. J. and Baldwin, J. concurring.

This is an action to recover possession of a mining claim. On the trial of the case, the defendant read in evidence a copy of a notice shown to have been posted on the claim in question, and purporting to be a notice signed by the plaintiff, and those from whom he purchased. No foundation was laid for the introduction of this evidence, and its admission was, therefore, erroneous. The absence of the notice was not accounted for, nor was it shown that the plaintiff had been notified to produce it. The evidence was secondary in its character, and was admissible upon the same terms which control the introduction of such evidence in other cases. It could only be resorted to if the higher evidence of the notice itself was not attainable, and to render its introduction proper, that fact should have been shown.

Judgment reversed, and cause remanded for a new trial.