Berry v. Lowe

• Decision Date: 22 April 1862
• Citation: 10 Mich. 9
• Court: Michigan Supreme Court
• Parties: Janet Berry v. John Lowe, Jr

10 Mich. 9

Janet Berry v. John Lowe, Jr

Supreme Court of Michigan

April 22, 1862

Heard November 1, 1861; November 5, 1861,

Error to Wayne Circuit.

Berry brought replevin before a justice to recover of Lowe a trunk certain articles of wearing apparel, and other goods. On trial, the justice found for the plaintiff as to a part of the articles replevied, and gave judgment in his favor for six cents damages and five dollars costs; and he awarded a return of the remaining articles to Lowe. Lowe sued out of the Circuit Court a writ of certiorari, assigning in his affidavit therefor the following among other errors:

"That the said justice erred in giving a general judgment of costs against this defendant, upon a finding of a part of the property in said plaintiff, and a part in this defendant.

"That the judgment rendered by the said justice is against the evidence in the case, there being no proof that said plaintiff had either a right of property or of possession to any of the articles awarded to the said plaintiff by said judgment; but, on the contrary, the proof being that the entire property of said trunk and clothing was in John Lowe Senior."

The Circuit Court reversed the judgment of the justice as to a portion of the articles adjudged to Berry, and rendered judgment in favor of Lowe for six cents damages and the costs of suit before the justice, and also for costs in the Circuit Court. The remainder of the justice's judgment was affirmed. Berry brought error to this Court, assigning for error "that the Circuit Judge erred in holding that the justice's judgment was erroneous in the several causes of error assigned in the affidavit for certiorari," and also that the Court erred in rendering the judgment it did for costs.

Judgment reversed in part and affirmed in part.

J. E. Bigelow, for plaintiff in error, to the point that where the evidence is conflicting the Circuit Court can not reverse the judgment of the justice, referred to, 3 Mich. 612; 4 Mich. 198; 15 Wend. 491; 18 Wend. 141; 8 Mich. 427.

G. A. Wilcox and E. Hall, for defendant in error, objected that the assignment of errors was not special as required by the rules. They also argued that the Circuit Court might review the case on the evidence: 1 Mich. 257; Ib., 502; 5 Mich. 532; 7 Mich. 79; 8 Mich. 427; but that the Supreme Court could not: 1 Mich. 257; 2 Mich. 404; 5 Mich. 532; 7 Mich. 79. And they distinguished these last cases from that of Cicotte v. Morse, 8 Mich. 427, where the decision turned, not upon a general review of the evidence, but upon a mistaken view of the Court as to what was, in law, a good presentment, demand and notice of nonpayment of a note.

Manning, J. Christiancy and Campbell, JJ. concurred. Martin, Ch. J. concurred in the result.

OPINION

Manning J.:

The assignment of errors is sufficient. It is "that the Circuit Judge erred in holding that the justice's judgment was erroneous in the several causes of error assigned in the affidavit for certiorari." The statute requires the party applying for a certiorari to "make or cause to be made an affidavit, setting forth the substance of the testimony and proceedings before the justice, and the grounds upon which an allegation of error is founded.--Comp. L., § 3869. And the case is to be brought to argument on the justice's return, "without any assignment or joinder in error, unless there be an allegation of error in fact."--Comp. L., § 3880. The assignment in referring to the errors stated in the affidavit makes such errors a part of the assignment.--Niles v. Rhodes, 7 Mich. 374.

The cause was argued on all the errors stated in the affidavit. This is the correct practice when the justice's judgment is affirmed or reversed in toto, for the whole case is then open for review. But it is not the practice when the judgment is affirmed or reversed in part, unless both parties have brought error; as it is the province of a court of review, on writ of error, to correct such errors only as have been committed adversely to the interest of the party suing out the writ.

In the present case, the justice's judgment was reversed in part and affirmed in part. The plaintiff in error was plaintiff before the justice, and the defendant in error was plaintiff in the Circuit Court. As defendant in error, he stands in this Court in the position his adversary stood in the Circuit; and as the latter could not have been heard in that Court to complain of the justice's judgment because it did not award to him all the property replevied by him, so neither can the defendant in error be heard in this Court to complain of the judgment of the Circuit Court for not reversing the whole of the justice's judgment, instead of a part only.

The next question is, What is the power of the Circuit Court on a certiorari to a Justice's Court? Is it confined to correcting errors of law only, or may it also correct errors in the finding of facts by the justice? The statute to which we must look for the power of the Court, is not as clear as it might be, and the decisions under it can not all be reconciled with each other. In Gains v. Betts, 2 Doug. Mich., 98, it was held that a judgment should not be reversed on the ground that the verdict of the jury was against evidence, unless it appeared that there was a total want of testimony to sustain the finding. While in Herring v. Hock, 1 Mich. 501, it was held that although the verdict of a jury should not be disturbed for slight causes, yet it was not conclusive as to the facts of the case. This decision was on a certiorari to the County Court, under § 54, p. 397 of the Revised Statutes of 1846, which section is in all respects bearing upon the present question like § 132 in the Justice's Act of 1841, under which Gains v. Betts was decided.--S. L. 1841, p. 114. These two cases therefore can not well be reconciled with each other.

If Herring v. Hock had been decided under § 76 of the Act to Consolidate the Laws in relation to County Courts, and for other purposes, approved April 2, 1849 (S. L. 1849, p. 290), which was in force when the case was finally disposed of, it would be altogether different, as this last section confers greater power on the Court than the section in the Revised Statutes of 1846. It not only authorizes the Circuit Court to "affirm or reverse the judgment of the County Court, in whole or in part," but also to "give such other judgment as justice shall require," and in its discretion to remand the cause to the County Court for a new trial. The difference between the two sections is referred to in the decision of the Court, so far as it respects the power of the Circuit Court to order a new trial; but no farther. Whether the Court supposed the two sections were in other respects the same, and based their decision on the act of 1849, does not appear. Such may have been the case. Perhaps it may fairly be inferred from the omission of the Court to notice any other difference between the sections than the one mentioned.

On this hypothesis, but no other, the cases may be reconciled. For it will hardly be contended, we think, that the additional power conferred on the Court to "give such judgment as justice shall require," would not authorize the Circuit Court to review the whole case--the facts as well as the law--as on an appeal in Chancery.

In Elliott v. Whitmore, 5 Mich. 532, the Court say "The Circuit Court, in...