Colbath v. Jones

• Decision Date: 04 November 1873
• Court: Michigan Supreme Court
• Parties: Richard D. Colbath v. Joseph Jones

28 Mich. 280

Richard D. Colbath v. Joseph Jones

Supreme Court of Michigan

November 4, 1873

Heard October 29, 1873

Error to Lenawee Circuit.

Assumpsit. Defendant brings error. Reversed.

Judgment reversed, with costs, and a new trial awarded.

William W. Osborn and C. A. Stacy, for plaintiff in error.

George L. Bachman, for defendant in error.

OPINION

Christiancy Ch. J.

The declaration before the justice, as appears by his return to the circuit court on appeal, was as follows: "Plaintiff declared on common counts in assumpsit and one accepted draft in the words and figures following, to wit:

"$ 174 67/100. Cincinnati, July 15th, 1869.

"Thirty days after date pay to the order of myself one hundred and seventy-four sixty-seven one hundredths dollars, value received, and charge the same to account of Joseph Jones.

"To R. D. Colbath, Toledo, Ohio.

"Written across the face, 'Accepted, R. D. Colbath,' on file in this court, and duly stamped, to plaintiff's damage three hundred dollars."

This is all there is in the justice's return in reference to the draft being or having been filed with the justice. And this, as we understand it,--and such certainly is the natural meaning of the language in the connection above shown,--is stated merely as an allegation of the declaration, to the truth or falsehood of which the justice makes no return.

On the trial in the circuit upon the appeal, the plaintiff offered in evidence, without proof of the defendant's signature, the accepted draft, of which the above purports to be a copy. The defendant objected to its introduction without proof of his signature, because it did not appear that the draft was filed with the justice. This objection was overruled, and defendant excepted.

We think the objection was well taken, and that the court erred in overruling it. Section 62 of the act in reference to justice's courts (Comp. L. § 5310) enacts that "the execution of a written instrument, filed with the justice" (meaning before or at the time when defendant is required to plead), "shall not be denied, except under oath." The statute does not dispense with the proof of execution unless the instrument has been thus filed, and here was no proof either of the justice's return (which would have been conclusive), or otherwise, that it had been thus filed.

We think also, that even if the draft had been shown to have been filed with the justice, the court...