Chappee v. Thomas

• Citation: 5 Mich. 53
• Court: Supreme Court of Michigan
• Decision Date: 12 May 1858
• Parties: Benjamin Chappee and John S. Newberry v. Esther Thomas

5 Mich. 53

Benjamin Chappee and John S. Newberry v. Esther Thomas

Supreme Court of Michigan

May 12, 1858

Heard May 8, 1858

Error to Wayne Circuit.

Thomas commenced, by warrant, an action against Chappee, on contract, before a justice of the peace. The affidavit upon which the warrant issued, set forth the non-residence of Chappee as the sole ground for applying therefor.

Chappee was arrested on the warrant and taken before the justice where the plaintiff appeared and declared in assumpsit, and the defendants, still in custody, pleaded the general issue. A trial was had, and judgment rendered for plaintiff, from which Chappee took and appeal to the Circuit Court, making therefor the general affidavit, and giving bond, with Newberry as his surety. All these occurrences, from the making of the affidavit for warrant to the taking of the appeal inclusive, took place in one day.

In the Circuit Court, on the first day of term, Chappee made a motion (by attorneys appearing specially for the purpose), to dismiss the cause and quash all the proceedings, on the ground that the proceedings before the justice were void for want of jurisdiction of the process issued, or of the person of the defendant, which motion was denied, and the parties went to trial on the merits, before a jury. The jury having rendered a verdict for Thomas, judgment was, on motion rendered against both Chappee and Newberry, his surety on the appeal.

A writ of error was brought on this judgment.

Judgment affirmed.

Towle, Hunt & Newberry, for plaintiffs in error:

The justice had no authority to issue warrant in this cause--the provision in the justices' act authorizing such arrest being unconstitutional. Chappee, by pleading to the merits, did not waive this objection, because at the time under duress of imprisonment: Reynolds v. Orvis, 7 Cowen 269; Brodhead v. McConnell, 3 Barb. 175, 190; Norton v. Danvers, 7 Term R., 371; Washburn v. Phelps, 24 Vt. 506; Robinson v. West, 11 Barb. 310; Thompson v. Lockwood: 15 J. R., 256; Boutel v. Owen, 2 Sandf. S. C., 655; Stevens v. Townsend, 1 Mich. 96. Besides, this proceeding was a nullity; and a nullity can not be waived, though an irregularity may: Carlisle v. Weston, 21 Pick. 536; Case v. Humphrey, 6 Conn. 139; Hussey v. Wilson, 5 Term R., 254; Osgood v. Thurston, 23 Pick. 110; Staples v. Fairchild, 3 Comst. 41; Matter of Hurd, 9 Wend. 465; Matter of Faulkner, 4 Hill 598.

The objection of want of jurisdiction can be taken in the appellate court: Wells v. Scott, 4 Mich. 348, and cases cited; Collins v. Woodruff, 4 Eng. 463, 465; Shaw v. Moser, 3 Mich. 71.

The judgment rendered against Newberry, was in violation of secs. 27 and 32 of art. vi of the constitution: Hughes v. Hughes, 4 T. B. Monr., 42; Littell's Prin. Law & Eq., 63.

Howard, Bishop & Holbrook, for defendant in error:

Admitting that the warrant ought not to have issued, it was too late to take the objection after issue on the merits, trial and appeal. The party has waived the irregularity.

Again, the affidavit and warrant, which were made the basis of the motion in the Circuit Court to quash the proceedings, constitute no part of the record, and, therefore, can not be regarded. The issue of fact alone was brought to the Circuit Court by the appeal: Swartwout v. Roddis, 5 Hill 118; Wood v. Randall, Ibid., 264; People v. Judges of Branch Circuit, 1 Doug. Mich., 319.

The judgment against Newberry was in accordance with law: Brooks v. McIntyre, 4 Mich. 316.

Christiancy, J. Manning and Campbell, JJ. concurred. Martin, Ch. J. did not sit in this cause.

OPINION

Christiancy J.:

If the warrant, said to have been issued by the justice in this case, was properly before us, we should probably be compelled to treat it as a nullity; because, though such warrant is authorized by the express provision of sec. 19, chap. 117 of Compiled Laws, yet, so far as relates to the issuing a warrant in a case on contract, solely on the ground of the nonresidence of the defendant, this provision is admitted on all hands to be in direct conflict with sec. 33, art. vi of the constitution of the state, and must have been inadvertently inserted in the statute.

But the warrant, we think, is not properly before us; and we can not, therefore, judicially, notice it; nor can we notice the various questions of jurisdiction, growing out of it, which have been raised by the counsel for the plaintiffs in error. The affidavit of Chappee, on which the appeal is based, is general, and relates only to the judgment on the merits. It does not set forth or complain of any matters connected with the process, or any questions arising upon it before the justice, nor of any decision or ruling of the justice, but looks only to the judgment on the merits. Any error of this kind, looking to the merits alone, can be corrected only by a retrial on the merits in the appellate court.

It is true the statute gives to the appellant, in a certain contingency, the right to avail himself, on appeal, of certain errors in the proceedings, and erroneous rulings and decisions of the justice in the course of the cause, distinct from the judgment on the merits; to this extent giving to the appeal the characteristics of a certiorari. But, to give to the appellant this right, and to the appeal this effect, he must make his affidavit special, setting forth the special matters complained of. No other fair construction, we think, can be given to the language of the statute, which, after having provided for the affidavit on appeal in the prior portion of section 184 (§ 3836 of Compiled Laws), uses this language: "And in case there shall be any objections to the process, pleadings, or other proceedings, and to the decision of the justice thereon, which would not be allowed to be made on the trial of the appeal, the same may be set forth specifically in the affidavit." The clause, "the decision of the justice thereon," relates to the words, "process, pleadings, or other proceedings." and clearly implies that there must have been a decision of the justice upon such "process pleadings, or other proceedings," to authorize an appellant to set them forth in the affidavit, or to avail himself of them in this from of proceeding. And the clause, "which would not be allowed to be made on the trial of the appeal," implies that such objections would not be allowed to be made on the trial of the appeal upon the merits, though by setting them forth specifically in the affidavit they might be adjudicated by the appellate court, as questions of law, according to sections 199 and 200 of this chapter (§§ 3851, 3852 of Compiled Laws). Here it does not appear, nor is it claimed that there was any motion made to, or any decision of the justice had upon, the process, nor is the process alluded to in the affidavit.

But it is contended that section 194 of this chapter (section 3846 of Compiled Laws) requires the justice, in all cases, to return the process without reference to the affidavit. We do not think this the fair construction of this section. The previous section (193) has, we think, made provision for the return of all matters...