Bigelow v. Booth

• Decision Date: 31 October 1878
• Citation: 39 Mich. 622
• Court: Michigan Supreme Court
• Parties: Albert E. Bigelow and Maria Ann Shaw v. Charles N. Booth and Elsie A. Booth

39 Mich. 622

Albert E. Bigelow and Maria Ann Shaw v. Charles N. Booth and Elsie A. Booth

Supreme Court of Michigan

October 31, 1878

Submitted October 29, 1878

Appeal from the Superior Court of Detroit.

Bill to redeem mortgaged premises. Defendant Elsie A. Booth appeals.

Decree reversed and the bill dismissed with costs.

Charles M. Swift and Hawley & Firnane for complainants. The validity of a sheriff's deed on execution issued under a transcript of a justice's judgment cannot be impeached for irregularities in the transcript and other papers Reed v. Gage, 33 Mich. 179; Mayhew v. Snell, id 182; Smith v. Brown, 34 Mich. 455; Zimmer v Davis, 35 Mich. 39; Allen v. Rensselaer Mills, 26 Mich. 123; Deitz v. Groesbeck, 32 Mich. 303; Saunders v. Tioga Mfg. Co., 27 Mich. 520; an assignment of a mortgage pending foreclosure abates the proceeding, Wallace v. Dunning, Walk. Ch., 416; Webster v. Hitchcock, 11 Mich. 56; Perkins v. Perkins, 16 Mich. 162; Brewer v. Dodge, 28 Mich. 360; Sedgwick v. Cleveland, 7 Paige 287; Mills v. Hoag, id., 18; Field v. Maghee, 5 Paige 539; a cause cannot be transferred to a court of collateral jurisdiction after an order pro confesso and a preliminary decree has been entered in it, Heath v. Kent Circ. Judge, 37 Mich. 372; Nor. Cent. Ry. v. Rutledge, 41 Md. 372.

Geo. W. Bates for defendant Elsie A. Booth. The statute authorizing judgments on transcripts of a justice's judgment must be strictly followed, Jewett v. Bennett, 3 Mich. 198; the transcript must be certified, and an affidavit of the amount due must be filed, Millar v. Babcock, 29 Mich. 526; Udell v. Kahn, 31 Mich. 195; Monaghan v. McKimmie, 32 Mich. 40; when defective jurisdictionally, the judgment may be attacked collaterally, Hahn v. Kelly, 34 Cal. 402: 8 Amer. L. Reg. (N. S.), 122; an assignee pedente lite need not be made a party to proceedings in chancery, Story's Eq. Pl. (8th ed.), § 156; 2 Dan. Ch. Pr., 1517; though he may become a party by a supplemental bill, Story's Eq. Pl., § 348; 1 Dan. Ch. Pr., 281; Mitf. Eq. Pl., 114; Foster v. Deacon, 3 Madd. 203; Binks v. Binks, 2 Bligh's App. Cas., 593; Exp. R. R. Co., 95 U.S. 226: though a transfer of interest may affect a suit, it may continue unless objection is made, Garr v. Gomez, 9 Wend. 649; Massey v. Gillelan, 1 Paige 644: Peters v. Gallagher, 37 Mich. 411; Newberry v. Trowbridge, 13 Mich. 281; Mobile Bank v. Hunt, 8 Ala. 884; Eyster v. Gaff, 91 U.S. 521.

OPINION

Marston, J.

This was a bill filed to redeem from a sale on a mortgage foreclosure of certain real estate.

Complainant's claim of title is under an execution sale of the mortgaged premises upon a judgment rendered against the grantee of the mortgagor in justice's court, and a transcript thereof filed in the circuit, upon which execution issued and the premises were sold.

It is claimed that the transcript of the judgment as filed in the circuit was fatally defective, and that the sale made under the execution was irregular and void.

Admitting that the affidavit made and filed with the justice April 4th, 1876, under 2 Comp. L., § 5382, was entirely regular, but which is disputed, there still remain two fatal defects to be noticed. The transcript of the justice filed with the clerk was not signed by the justice at all. His name appears in the body of the certificate, but that is not sufficient. Whether it was written there by the justice or by some other person does not appear. It should have been signed officially by him in the usual manner. Marston v. Brashaw, 18 Mich. 81. The statute (§ 5383) makes it the duty of the clerk of the circuit court to file such transcript, and to enter and docket the judgment, on the plaintiff, his agent or attorney, making and filing an affidavit stating the amount due upon such judgment.

No such affidavit was made or filed. The affidavit made and filed with the justice under § 5382 would not take the place of the affidavit required by § 5383. The one filed with the justice was made and sworn to April 4th, while the transcript was filed with the clerk of the circuit court April 12th. Here was ample time in which the judgment might have been paid in whole or in part. It does not necessarily follow that the amount sworn to as due on the 4th of April remained due and unpaid on the 12th of the same month. Irrespective of this however the statute clearly contemplates that a second affidavit shall be made, and that it shall be filed with the clerk. And it is only upon this affidavit being filed, that the clerk is authorized to file the transcript and enter and docket the justice's judgment. The affidavit is jurisdictional; the want of it is not a mere...