Bradley v. Andrews

• Decision Date: 20 June 1883
• Citation: 16 N.W. 250,51 Mich. 100
• Court: Michigan Supreme Court
• Parties: BRADLEY v. ANDREWS.

16 N.W. 250

51 Mich. 100

BRADLEY v. ANDREWS.

Supreme Court of Michigan

June 20, 1883

Where the affidavit of appeal from a justice of the peace is sworn to before a notary public, who is also the attorney of the appellant, the appeal should not on that ground be peremptorily dismissed, as, within the act of l877. Such a defect is cured by the provisions of section 5453 of the Compiled Laws.

Error to Lenawee.

Richard A. Watts, for plaintiff.

Westerman & Westerman and Millard, Weaver & Weaver, for defendant and appellant.

GRAVES, C.J.

Bradley sued Andrews before a justice of the peace, and the latter being unable to attend in person, employed Mr. Westerman, an attorney of this court, to appear and act for him. The attorney failed, however, to appear in season, and Bradley obtained judgment for damages, $231.34, and costs, $3.45. Andrews proceeded to appeal, and complied with all the statutory formalities. The court, on motion of the plaintiff made a peremptory order dismissing the appeal, and the defendant alleges error. The ground of dismissal was that the affidavit for appeal was sworn to before Westerman as notary public, it being claimed that his professional relation to the cause brought him within the statute of 1877, which enacts "that it shall not be lawful for notaries public who are attorneys and counselors at law or solicitors in chancery to administer oaths in causes in which they may be professionally engaged." Pub.Acts 1877, p. 3.

Our attention must be confined to the actual case presented. The question concerns an affidavit for appeal from the judgment of a justice, and it cannot be properly disposed of without giving due consideration to a specific provision relative to affidavits for that purpose. The chapter giving the right of appeal and prescribing the affidavit contains several provisions to obviate what would otherwise be absolute fallacies; and the purpose of the legislature is very plain to secure the right, as far as practicable, against mere errors and mistakes. Among the provisions mentioned is the following: "No appeal shall be dismissed on the ground of a defective affidavit, nor because the same does not conform to the provisions of this chapter: provided, the appellant, his agent or attorney, shall make an affidavit which shall conform to said provisions." Comp.Laws, � 5453.

It may be argued, no doubt, that this provision is not applicable because it supposes...