Jerome v. Williams

• Decision Date: 24 October 1865
• Citation: 13 Mich. 521
• Court: Michigan Supreme Court
• Parties: George Jerome v. John W. Williams

13 Mich. 521

George Jerome v. John W. Williams

Supreme Court of Michigan

October 24, 1865

Heard October 21, 1865 [Syllabus Material]

Certiorari to Wayne circuit.

The facts are stated in the opinion.

Order of the court quashed, with costs.

Theodore Romeyn, for plaintiff in error:

To the point that the plaintiff in error, Mr. Jerome, is discharged by the lapse of time, and under the statute of limitation.

1. A justice's court is not a court of record, and, therefore, no action lies on the judgment of such court after six years: 2 Comp. Laws, § 5361.

2. Execution cannot issue, in the justice's court, after two years from the time of rendering judgment, or the return of a prior execution: 2 Comp. Laws, § 3805.

3. The filing of a transcript in the circuit court gives a right to levy on real estate and extends the remedy. But, it is respectfully submitted, the judgment actually rendered in the justice's court does not become a judgment rendered in the circuit court, because, for the sake of the remedy, a transcript has been filed, at least with the reference to the statute of limitation: 2 N. Y. R. S., 80, p. 248, § 129, p. 296, § 18; Johnson v. Burrell, 2 Hill 238; Young v. Remer, 4 Barb. 442.

4. Whatever may be the rule as to the judgment debtor, it is submitted that the surely in this case cannot be held to have had a judgment rendered against him in the circuit court. The statute in force, when he became surety, did not make his undertaking equivalent to a present judgment against him.

Even if it had such effect, still the plaintiff saw fit to take his judgment in the circuit court against the principal debtor alone.

There certainly was no judgment rendered against the surety in the circuit court, until the security signed by him was brought there.

And this was not done until years after the plaintiff had perfected the judgment against the principal in the latter court.

5. The statute of limitations can be set up on a motion of this kind, or on scire facias: 2 Hill 234; 4 McLean 352.

Walker & Kent, for defendant in error:

To the point that the remedy on the judgment against the surety was not barred by the statute of limitations.

On filing the transcript, the judgment became one of the circuit court, as against the principal defendants at least: Comp. Laws, § 3788; Jewett v. Bennett, 3 Mich. 198; Waltermire v. Westover, 14 N. Y., 16.

A judgment of the circuit court is presumed paid after ten years from its entry: Comp. Laws, § 5384.

But if proceedings have been commenced, to issue execution, before this period has elapsed, the expiration of the time pending the proceedings is no bar: Driggs v. Williams, 15 Abbott Pr., 477.

And the statutory presumption of payment may be rebutted: Cowen and Hill's Notes, Part 1, p. 324; Joy v. Adams, 26 Me. 330; Redington v. Julian, 2 Ind. 224.

There are in the case at bar affidavits showing that the judgment is not paid. If any statutory presumption of payment might otherwise arise, this must be sufficient to rebut it.

The judgment can be enforced, then, against the principal defendants.

The stay is security for the judgment; it is collateral thereto, and, unless for some special reason, it will last as long as the judgment.

It will be said that it is outlawed, because not filed in the circuit for more than six years.

If so, it must be because of some statutory provision. There is none which by express words or reasonable implication means any such thing.

It is well settled that the statute of limitations does not take away the right of the creditor; it only bars him from remedy by action: Parsons on Contracts, vol. 2, p. 379.

The remedy by execution is not barred because there may be no right of action: Waltermore v. Westover, 14 N. Y., 16.

Campbell, J. Cooley and Christiancy, JJ. concurred. Martin, Ch. J. did not sit in this case.

OPINION

Campbell J.:

Jerome, on the 10th of March, 1855, signed an instrument to operate as stay of execution on a judgment by confession, entered the same day, in favor of Williams against O. M. Hyde and J. L. Conger. Successive executions were returned unsatisfied before the justice, who, on June 20th, 1860, certified a transcript of the judgment, which was filed in the county clerk's office. The stay of execution was not then filed, and an execution was issued by the clerk on the transcript against all parties, and returned unsatisfied September 6, 1860. Subsequently, but when, does not appear, except that it was between September 12th, 1864, and February 15th, 1865, the original stay appears on file in the clerk's office, with an indorsement, "filed as of June 23, 1860, by order of the court. Henry Starkey, deputy clerk." February 15, 1865, upon application of the judgment creditor, a new execution was ordered against the stay as well as the judgment debtors, and Jerome, thereupon, brought certiorari to review the order.

It was suggested that a certiorari would not lie on such an order, but being the decision of a common law court, it can only be reviewed on error. The proceeding, however, is a summary proceeding not in common law form, and may be had at chambers as well as in court. We think there is no ground for the objection.

It is claimed in behalf of Jerome that this stay never was lawfully in the clerk's office, and also that after this lapse of time any proceeding upon it is barred.

The statute providing for filing transcripts requires the justice to give to the plaintiff a certified copy of the proceedings "together with...