author: Per Ouriam.

text:
    The People ex rel. Caleb Mead v. The Highway Commissioners of Caledonia.

      Highways: JRecoi'd of proceedings to discontinue. When a highway is discontinued, the record of the proceedings filed with the Town Clerk must show every thing necessary to make them valid.

      Commissioners of highways: Power to amend return. When Commissioners of Highways have gone out of office, it is incompetent for them to make any addition or amendment to a return of their proceedings already made.

      Heard October 8th.

      Decided October 9th.

      Certiorari to highway commissioners of Caledonia.
    This was a motion to remand the writ issued in this cause for a further return.
    On April 5, 1865, an application was made to the highway commissioners of the town of Caledonia, Shiawassee county, by the requisite number of freeholders, for the discontinuance of a certain highway therein described. Said commissipners having appointed a time and place for meeting, met accordingly, and made an order discontinuing said highway, which order is dated April 18, 1865.
    The return of the highway commissioners to the writ did not show that any notice was served upon the owners or occupants of the land through which said highway was proposed to be discontinued, as required by law, nor did it show that any notice was posted by said commissioners, as also required; and it was conceded that there was no proof on record in the town clerk’s office that any such notice was ever served or posted.
    The respondents moved upon a showing on oath to have the writ remanded for a further return, in order that the town record might be perfected by filing affidavits of the servipe and posting of such notices; and that the amended record might then be sent up.

      P. Gould, in support of the motion.

      H. McOurdy and J. M. Goodell, contra.
   Per Ouriam.

Where a highway is discontinued, the record of the proceedings filed with the town clerk must show everything necessary to make the proceedings valid. In this case it is admitted the record is defective, in not showing notice to the parties interested, and it is proposed to supply the omission by having affidavits filed with the town clerk to show that proper notice was given. It is not denied that the proceedings on file in that office must in some way show this. Whether the commissioners who made the return to the clerk could make any subsequent addition or amendments to it under any circumstances, may be questionable. But they cannot at any rate do this after they go out of office. And the law has piade no provision for any such action.

As no return which can be made will rectify this defect, there would be no propriety in remanding the papers. The motion must be denied.

The respondents having no further ground of defense, the proceedings were quashed.


source: Caselaw Access Project

author: The Court

license: Public Domain

text:
    People v. Horatio Pratt.

      Quo wairanto: Default: Stipulation: Attorney General. When a default is entered in quo warranto, no issue of fact can be framed, until the default is set aside.
    And where a stipulation, signed by relator and respondent, was filed previous to the default, but afterwards signed by the Attorney General, it was held that as it would only be admissible as evidence upon proper issue, the entry of the default might operate as a withdrawal of it, and the subsequent signature of the Attorney General could not of itself operate to open the case or hold respondent to the agreement.

      Heard and Decided October 8th.

      Quo warranto.

    This was a motion to strike the cause from the docket.
    It appeared that an information was duly filed, and also an answer thereto, setting up a defense upon the merits. A stipulation was afterwards signed by the relator and respondent, but not by the Attorney General, admitting the facts.
    No replication being filed, the default of the Attorney General was entered. The Attorney General afterwards, but without leaye of respondent, signed the stipulation.

      A. Blair, for the motion.

      Wm. L. Stoughton, Attorney General, contra.
   The Court

held that the cause could not be heard upon any statement of facts not in issue, and that until the default should be set aside no such issue could be framed.

Held also, that inasmuch as the stipulation was only admissible as eyidence upon a proper issue, the entry of default by respondent on failure of the prosecution to take issue on his plea, might operate as a withdrawal of it, and the subsequent signature of the Attorney General could not of itself operate to open the case, or to hold respondent to the agreement.


author: Christiancy J.

text:
    Pliney B. Holdridge v. The Farmers and Mechanics Bank of Rochester.

      Depositions: Evidence: Amended pleadings: Effect of foreign release of one partner. Plaintiff sued defendants on certain notes, and took depositions proving a partnership. Subsequently, an amended declaration was filed, omitting the name of defendant Crouch, and alleging that he had been discharged by plaintiff as to his individual liability. At the trial the depositions and the notes were admitted in evidence, under objection. The defendants proved the discharge. Held,

    1. That the amendment ‘of the declaration after the depositions were taken, leaving out one of the defendant partners, who had paid his portion of the debt and had been discharged, did not alter the substance of the issue as to any fact to which the depositions related.

      % If the release was valid, and had the effect to release Crouch only, then .the notes, after the proof of the release, if not before, were clearly admissible, and in legal effect, were for the balance remaining due upon them.
    The objection to their admission was removed by the introduction of the release by the defense.
    3. The contracts being made in New York, and by their terms to be executed there, the obligation created by them, as well as the legal effect of the release, are primarily to be determined by the laws of New York.
    The release having the effect in New York, of releasing Crouch, leaving the other partners liable for their proportions of the joint indebtedness, must have the same effect here, unless this would interfere with the laws of this state, or with the rights of our citizens. Our own statute being in effect the same as that of New York, the release is valid here.
    It is unnecessary that the release should contain a reference to the statute, provided it appears to have been executed under a state of facts bringing it within the statute. Under such circumstances a wrong reference would be mere surplusage.

      Heard and decided October 10th.

    Error to Livingston Circuit.
    This was an. action on two promissory notes made by Beir, Crouch, Holdridge & Co., to tbe order of, and indorsed by A. Vickery.
    Defendant pleaded tire general issue.
    Plaintiffs amended their declaration by striking out tbe name of Crouch, and setting forth that be was a partner with said defendants when tbe indebtedness was incurred; but that afterwards plaintiff made a separate settlement with him, whereby in consideration of tbe payment of $599,32 to be made by said Crouch, he discharged him from all individual liability to pay said firm debt.
    Previous to the amendment of said declaration, plaintiff took certain depositions tending to prove the original partnership.
    On the trial the said depositions, and the notes,' were read subject to objection.
    The defendants proved the discharge of said Crouch by plaintiff’s written release.
    Judgment was rendered for plaintiff.
    The charges of the Court below are stated in the opinion.

      0. HawTcins, for plaintiff in error, Holdridge.
    1. The depositions taken in the cause before one party was stricken out, were inadmissible on an issue joined after the depositions were taken, as between the parties to the suit then on trial, upon new pleadings.
    There is no authority for taking depositions out of the state,- except under the statutes — See Comp. L. § 4244.
    And then only after issue joined'between the parties.
    It may be said the law of 1859, act No. 181, authorizes the cause to proceed. We say it does not. It only authorizes a suit to be brought either in law or in equity against the remaining joint eo- partners, or joint debtors — See Laivs of 1859, p. 509, § 3.
    2. It will not be denied that the discharge of one of a number of joint debtors at the common law, discharges the same as though a collection had been, made in full of one joint debtor upon execution — Byles on Bills, p. 188-306; 4 Bd. and El. 675; 1 Bos. and Pul. 630; 2 Bro. and B. 38; Edwards on Bills, 540; 1 Parsons on Notes and Bills, 250; 1 Hill, 185.
    3. The plaintiff was bound to prove the allegations respecting the discharge of the defendant Crouch.
    4. The greatest strictness is required in pleading a statute .of this kind, and any variance will be-fatal — 5 Hill, 461; 1 Barb. 185.

      The release, as proven, by the defendant, shows that it was made in pursuance of chapter 267 of the laws of 1838, and such acts as have been passed amending the same. It certainly does not refer to any law of Michigan or New York having reference to the subject. Matter of the release therefore is unavailable — lb.

      G. V. W. Loihrop, for defendants in error.
    1. The objection to the admission of the depositions cannot be supported.
    They are correctly entitled in the suit as it stood when they were taken. And the parties against whom they were used, were all parties when the depositions were taken. They had full privilege of cross-examination, and the issue remained the same as to them.
    Even in a subsequent suit, where the subject matter is the same, a substantial identity of parties is sufficient to authorize the use of depositions taken in a former suit — 1 Greenl. Ev. §55; 1 Ad. and, El.; 27 Penn. 138.
    Neither an amendment of pleadings, which does not change the issue, nor a discontinuance as to a party, is sufficient ground for excluding depositions already taken — 36 Maine, 71; 27 Ala. 142.
    2. The second error assigned is of no- force, unless the ground taken in the third assignment of errors can be sustained. It is enough to say that the notes were those of the only persons who, on the facts stated in the pleadings, were then personally bound.
    3. Was Crouch one of the firm of Bier, Crouch, Hold-ridge & Co., discharged by the release of October 10, 1864 ?
    The Court below held that he was, and that therefore a recovery could be had on their proportion of the debt against the other partners.
    The release purports to have been made in New York, and under the laws thereof — 3 Rev. 8tat. of N. T. p. 65.

      But our Act of 1859 is to tbe same effect, and in nearly tbe same words — Sess. L. 1859, p. 506.
    The contract was made in New York, and was to be performed there. ' It was therefore subject to the laws of New York — 4 Mich. 450; 3 Comst. 269.
    A discharge, good and lawful by the law of the place where the contract was made or to be performed, is to be held of the same validity and effect in the courts of every other state — Story’s Gonji. L. §331-7; 4 Gow. 508, note.

    The above proposition of course has this limit, that the law of a foreign place will not receive effect in the courts of the state where the action is brought, when to do so would be against its fundamental laws, or against public policy, or in violation of the just rights of its own citizens — Story’s Gonji. L. §348; 4 Goto. 508, note; 6 Hill, 529.
    But in this case the discharge in question is fully sanctioned by our own law — L. 1859; p. 506. .
    This then is a case where the discharge has the same effect by the lex loci and by the lex fori.

    In a word, the old technical rule which made a discharge of one partner a discharge of all, has been repealed in both states.
    Wherever the law permits the discharge of one joint debtor, the strict technical rule has no application. This was long ago ruled in the case of a discharge under insolvent laws — 3 Gaines, 4.
   Christiancy J.

We see no ground for the objection to the admission of the depositions. The amendment o£ the declaration after the depositions were taken, leaving out one of the defendant partners who had paid his portion of the debt and had been discharged, did not alter the substance of the issue as to any fact to which the depositions related — See Wright v. Tatham, 1 Ad. and El. 3; Medcalf v. Seccomb, 36 Me. 71; Goldsmith v. Picard, 27 Ala. 142; Height v. Heseinger, 27 Penn. 138; 1 Greenl. Ev. § 35.

Tbe second assignment of error raises tbe question whether the notes were properly admitted in evidence under the common counts against those parties only who remained defendants in the amended declaration.

Crouch having been shown to have been one of the partners when the notes were made, and his name appearing in the signature of the partnership name, this question will depend upon the effect of the release to Crouch. If that release was valid, and had the effect to release Crouch, leaving the other partners liable to their proportion of the joint debt, then the notes, after this proof had been given (if not before), were clearly admissible, and, in legal effect, they were, for the -balance remaining due upon them, the notes of the remaining defendants only. If there was any legal objection to their admission at the time they were introduced, that objection was removed by the defense introducing the release, if its effect was as above supposed.

• Did then this release, purporting to discharge Crouch only, operate as a release of one joint debtor at common law to discharge all the parties jointly liable, as claimed by the plaintiff in error, or was its effect restricted by any statute of New York or of this state, or by comity, so as to discharge Crouch only, leaving the other defendants jointly liable for their portion of the debt? This is the only remaining question.

The contracts (the two promissory notes) upon which the release was intended to operate, were made, and, by their terms, to be performed in the state of New York, and the release was executed there. The obligation created by the contracts, as well as the legal effect of the release, are therefore primarily to be determined by the laws of that state. See, as to the contracts, Story’s Confl. of Laws, § 242 to 248, 262 (a); Hyde v. Goodnow, 3 Comst. 269 ; Bissell v. Lewis, 4 Mich. 450: As to the release, Story’s Confl. of Laws, § 331 to 337, and authorities there cited.

It is not denied that under the statute of New York “for the relief of partners and joint debtors,” Chapter 258, Laws of 1838 (2 Rev. Stat. ed. of 1852 p. 176), it was competent for the plaintiff to have executed a release to Crouch for his portion of the joint debt, without affecting the liability of the other partners for their proportion of the debt. But it is insisted by the plaintiff in error, that in order thus to restrict the effect of the release, it must refer to that statute, to show that it was executed under its provisions; and that the reference in the release to Chapter 157 instead of 158, is erroneous, the former chapter not referring to this subject.

In support of the proposition, that the release must contain a reference to the statute, we are referred to the following cases in New York. — Bronson v. Fitzhugh, 1 Hill, 185; Bank of Poughkeepsie v. Ibbotson, 5 Hill, 461; Hoffman v. Dunlop et al. 1 Barb. 185.

Though the courts in these cases do speak of the necessity of referring to the statute, yet upon a careful examination of the cases, we are satisfied the intention was only to declare that the release should appear to have been executed in such a case or under such a state of facts as would bring it within the class of cases intended to be provided for by the statute; and if this did not otherwise appear, the instrument should, at least, refer to the act, for the purpose of showing that it was executed under its authority.

Their statute (passed in 1838 and amended in 1845) seems to have been the original from which ours is substantially copied (so far as the present question is involved). It does not apply generally to all releases which may be executed to one partner or joint debtor. All its provisions, except those of the last section, apply directly only to the case of partners, and this not generally, but only when the partnership has been dissolved, and where there has been a separate “composition or compromise with the creditor by tbe partner or partners to be discharged.” By the last section the act is extended to the case of joint debtors; but by this extension it is confined, as in the case of partners, to cases where there has been a like separate composition or compromise by one or more of the joint debtors of his or their share of the joint liability.

Hence there might be many other cases not coming within the statute, where a release to one joint debtor would be left to stand as at common law. The statute, it was said, did not appear to contemplate a technical release of one partner or joint debtor; and it would seem to be evident that the statute did not require such technical release, as it provides only for a “note or memorandum in writing.”

Now the releases brought in question in the New York cases above cited, seem to have been, in form, only the ordinary technical releases usually executed at common law without the recital of any facts bringing the cases to which they were intended to apply, within the class of cases provided for by the statute, and without even a reference to the statute.

There was therefore nothing to show that they were not, in fact, intended to be given as common law releases, and in cases to which the statute did not apply. Under these circumstances the court say that to give the releases the restrictive effect claimed, there should at least have been a reference to the statute to show that the parties were acting under its authority.

This was a public law, general in its operation, of which the courts were bound to take judicial notice. But they could not take judicial notice whether facts which did not appear, would bring the case within the statute. The best reference which can be made in such an instrument to a general public law, is to state a case which comes within its provisions.

In the case now before ns the release recites a state of facts which bring the case within the provisions of the act, and we can have no doubt, would, by the courts of New York, be held sufficient in this respect.

The reference to the wrong chapter where the law was to be found, being wholly unnecessary, should therefore be treated as mere surplussage, or as having the same effect as if it had been “to the statute in such ease made and provided.”

The case does not call for an opinion upon the point, whether the release must show upon its face that it was executed under circumstances which would bring it within the law, as seems to have been held in New York, or whether these circumstances may be shown aliunde when the release is silent upon the point.

The allegation in the declaration that the settlement was made and the release executed under and by virtue of the provisions of act number 181 of the laws of 1859 (manifestly referring to our own statute upon this subject), was also entirely superfluous, and must be treated as surplussage. The release was set up by way of defense under the general issue; and though unnecessarily referred to in the declaration, was not introduced by the plaintiff. The defendants could only take advantage of the non-joinder of Crouch as á co-defendant by a plea in abatement.— 1 Chitty’s PI. 52, 53.

This release, then, having the effect in New York to release Crouch, leaving the other partners liable for their proportion of the joint indebtedness, it must have the same effect by comity in this state, unless to give it such effect would violate some fundamental law or the public policy of the state, or injuriously affect the rights of our own citizens. — Story’s Confl. of Laws, § 38, 348, 9; Commonwealth v. Bassford, 6 Hill, 526; Andrews v. Herriot, 4 Cow. 508 and note.

But as our own statute applicable to the facts (had they occurred here), is the same in effect upon this question as that of New York, there is no room for conflict.

Tbe judgment must be affirmed, with, costs to tbe defendant in error in tbe court below and in tbis court.

Campbell and Cooley JJ. concurred.

Martin Oh. J. did not sit.


author: Ckristiancy J.

text:
    Milton J. Draper v. Timothy B. Tooker.

      Special appeals: Justices Courts: Power of Circuit Court: Justices oj the Peace: Pendering Judgment. At the close of a trial the Justice of the Peace stated to the parties that he should take time for considering the case— without stating how much time. The defendant, supposing that the Justice could not render a judgment until the fourth day thereafter, took no steps to ascertain what the decision was until the fifth day after the expiration of such four days.
    The Justice rendered judgment for plaintiff the day after the trial.

      Held, That when the Justice does not fix the time within the four days allowed by the statute upon which to render his judgment, that the parties are hound to t^ke notice when the judgment is rendered.

      Held, further, That in such a case the Circuit Court lias no power to grant a special appeal — Comp. L. §3843 — the party not having been in any way misled, but laboring simply under a misapprehension as to the legal effect of the action of the Justice.

    The statute does not give a general discretion to the Circuit Court to allow appeals when it would be merely equitable. The right is only given when the party has been prevented from appealing within five days by circumstances beyond his control; and the discretion of the court is confined to such cases.

      Heard October 7th and 8th.

      Decided October 10th.

    Error to Jackson Circuit.
    Tbis was an action of assumpsit brought before a Justice of the Peace to recover tbe amount due upon a promissory note.
    Judgment was rendered for plaintiff. Tbe defendant applied to tjie Circuit Court for leave to take a special appeal, under tbe statute, claiming tbat be bad been prevented from appealing within tbe usual time by circumstances not under his control.
    Tbe appeal was granted. Tbe facts are stated in tbe opinion.

      Johnson é Sigby, for plaintiff.
    The first error assigned is tbat tbe court below improperly allowed tbe appeal.
    Section 3842 of Comp. L. provides tbat appeals may be allowed in the Circuit Court after tbe expiration of five days, when tbe party making tbe appeal has been prevented from taking tbe same by circumstances not'under bis control.
    No such circumstances were shown in tbe affidavits, upon which tbe appeal in tbis pase was granted. Tbe most tbat can be urged is tbat tbe counsel for defendant mistook tbe time designated by tbe court for tbe rendition of his judgment.
    And though tbis to some extent may be a discretionary power, it can not be lawfully exercised without a compbance with tbe provisions of tbe statute. Tbis is not one of those cases where tbe power is unlimited, and consequently not subject to a review by tbis court; and if we are right in tbis regard, then it becomes simply a question whether here was a showing within tbe statute.
    It seems to ns tbat tbe; statute was intended to provide against tbe intervention of some physical cause preventing tbe appellant from perfecting bis appeal. Tbe most tbat be can claim in tbis case is tbat be was misled by a supposed • statement of tbe Justice. We submit tbis question, however, more for the purpose of getting a construction of this statute than otherwise.

      Wm. K. Gibson, for defendant.
    Tbe granting of tbe special appeal by tbe Circuit Court was right and proper, and it is not a subject of .review by tbis court.
    Tbe use of tbe phrase “Appeals may be authorized by tbe Circuit or District Court,” in §3842 Gomp. L. indicates tbat tbe Legislature intended to confer a discretionary power upon tbe court.

      The courts will not enlarge or extend a statute for the purpose of encouraging litigation, nor take away, by construction, a discretionary power, wise and proper, unless the plain words of the statute demand it.
    This court will not review the exercise of discretionary power.
    But if the statute be construed not to confer discretionary power, still it is claimed that the case made by the petition and affidavits was within the meaning of section 3843. The party seeking to appeal was prevented by a circumstance not under his control. He was led by the Justice, without fault on his part, into an error as to when he should take his appeal
   Ckristiancy J.

The first question presented in this case is whether the appeal from the judgment of the Justice was authorized by section 190, of Chapter 117 of the Gomp. L. the appeal having been taken more than five days after the rendition of the judgment?

By the 184th section, the time for appealing is fixed “within five days after the rendition of the judgment.” But the 190th section enacts that “appeals may be authorized by the Circuit or District Court after the expiration of five days, when the party making the appeal has been prevented from taking the same by circumstances not under Ms control.”

The only “circumstances” relied upon in the petition for the appeal, or which are here relied upon as authorizing it, are, that “after the close of the argument the Justice stated he should take time to decide the case. It was then asked by the counsel for the ■ plaintiff how-, long a time a Justice could take for such a purpose. The counsel for the defendant (the appellant) then said that as the case had been continued for the argument, the Justice had four days yet in which, to decide it. No time was fixed by the Justice when he would decide the case”; but defendant supposed he would take four days; and instructed his attorney to appeal the case if it should be decided against him. The Justice rendered his judgment the next day against the defendant. On the last day the case could have been appealed, vif the Justice had taken the four days, the defendant’s (appellant’s) attorney saw the Justice and was informed by him that the judgment had been rendered as above stated, and it was too late then to appeal.

These being the only circumstances relied upon as giving the right to appeal, are they such as were not “under the appellant’s control,” within the meaning of the 190th section ?

It is quite clear that the statute did not intend to give a general discretion to the Circuit Court to allow appeals in any case after the five days, where, in their judgment, it would be equitable, or when the party had made a mistake, or drawn an erroneous inference; but that by the restrictive language used, the intention was to confine that discretion to the class of cases in which the appellant had been prevented from appealing within the five days by circumstances beyond his control. The discretion is therefore confined to cases falling within this class.

By the 13M section of this chapter the Justice is to render his judgment and enter the same in his docket within four days after the cause shall have been submitted to him for final decision. This certainly does not mean that if he does not decide at once, he must wait the four days, or until the fourth day, but he may decide at any time within the four days. If he determines, when the cause is submitted to him, to decide it on some particular day within the time, this is in legal effect a continuance of the cause until that day, and should be so announced to the parties, and so entered upon his docket. If he does not, at the time of the submission of the cause, determine upon the day when he will render his judgment, he may render it at any time within the four days, when, upon due consideration, he becomes satisfied what judgment should be rendered; and, in such case, the court must be regarded as still open, so far as the particular case is concerned, and the parties bound to take notice when the judgment is rendered, and what the judgment is; because, in such case, the parties, until the judgment is rendered, must be regarded as still in court.

In the present case, it appears, from the appellant’s own showing, that no time was fixed by the Justice when he would decide the case. Both parties, therefore, must be regarded as knowing that the court was still open for the decision at any time within the four days when the Justice should have become satisfied, and should choose to render the judgment, and they were therefore bound to take notice of the day when the judgment should T^e rendered. This would not require their presence, or that of their attorneys, all the time, in court, but would render it necessary, if'they wished to avail themselves of the whole five days for appealing, to inquire each day whether a judgment had been rendered. No fraction of a day would, of course, be regarded.

We think, therefore, the Circuit Court had no power to allow the appeal in the present case, and that the judgment of that court should be reversed with costs, and the judgment of the Justice affirmed.

Campbell and Cooley JJ. concurred.

Martin Ch. J. did not sit.


author: The Court,

text:
    Eunice J. Robinson v. Goin Robinson.

      Decree of Divorce; Consent. Decrees will not be made by consent in divorce suits.
    Tbe court must be satisfied, from tbe evidence, that a legal cause for divorce exists.

      Heard and decided April 23d.

    Appeal in Chancery from Lenawee Circuit.
    The bill was filed for a divorce, and a decree was made as prayed, with a further order awarding a certain amount to complainant by way of permanent alimony.

      P. Morey

    now moved, on a stipulation signed by defendant and by himself, as solicitor for complainant, consenting thereto, that the decree of the court below, from which defendant had appealed, be affirmed, but with the omission of the order for alimony.
   The Court,

denied the motion, holding that decrees should not be entered by consent in divorce cases, but the court must look into the testimony and satisfy itself that legal cause for divorce exists.