Facey v. Fuller

• Decision Date: 24 October 1865
• Citation: 13 Mich. 527
• Court: Michigan Supreme Court
• Parties: Richard A. Facey v. Ezbon G. Fuller

13 Mich. 527

Richard A. Facey v. Ezbon G. Fuller

Supreme Court of Michigan

October 24, 1865

Heard October 10, 1865 [Syllabus Material] [Syllabus Material]

The facts sufficiently appear in the opinion.

Judgment affirmed, with costs.

W. S Geer, for plaintiff in error:

1. There is no legal proof that the paper offered was a transcript from the docket of any justice of the peace in Branch county, or any other county of this state. There is no clause in our statute authorizing Porter to certify that Morehouse was formerly a justice of Branch county, of this state. Porter, at most, could only certify to the correctness of the copy of judgment; the balance was merely surplusage, and of no legal force, whether objected to or not. And further, there was no testimony given showing that the signature of Porter was genuine, and no person was called who had official knowledge of said Porter's judicial functions, and the certificate does not carry with it the smallest degree of legal evidence that Morehouse was ever a justice of Branch county, and, as such, rendered said judgment.

2. The want of jurisdiction may be shown by evidence, even where it tends to contradict the minutes or dockets which are kept by justices of the peace as records of their proceedings: Clark v. Holmes, 1 Doug. (Mich.), 390.

This judgment had been rendered over five years before the plaintiff ever had any knowledge of its existence, as by him claimed. What remedy has the plaintiff in error, except to inquire into and contradict the jurisdictional facts therein recited? See 4 Selden N. Y. R., 57, and cases there cited. Chemung Canal Bank v. Judson, 4 Selden 254, is directly in point. In this case Judge Ruggles says: "The power of this court to inquire into the jurisdiction of the district court of the United States is undoubted." Also, see 19 Johns. 39; 8 Wend. 569; 18 Pick. 393; 1 Exch. 1.

"No officer can acquire jurisdiction by the mere assertion of it, or by falsely alleging the existence of facts on which jurisdiction depends:" Harrington v. People, 6 Barb. 607; 5 Barb. S. C. R., 607.

The minutes made by a justice of the peace in making a record of a judgment taken before him are only prima facie evidence of the facts therein stated on which jurisdiction depends: 6 Barb. 607.

The objection taken was that the record could not be contradicted by parol testimony. This objection impliedly admits that a certain other class of testimony would be admissible.

If any testimony is admissible, the testimony that was offered should have been received, for the reason that it was impossible for the court to say to what extent the plaintiff in error might have followed up his offer. This court will not presume that the testimony offered was all that the plaintiff in error could have produced upon this subject: 12 Mich. 452.

Fraud and collusion will vitiate the return or record of any officer: Neal et al. v. Granger, 8 Mich. 450.

E. G. Fuller, in person:

Every justice of the peace shall keep a docket, in which he shall enter certain enumerated items: Comp. Laws, § 3890.

The original entry of the judgment or other proceedings, or a transcript certified by him, is good evidence thereof: Comp. Laws, § 3892.

And "a transcript from the docket of any justice of the peace of any judgment had before him, of the proceedings in the cause previous to such judgment, of the execution issued thereon, if any, and of the return of such execution, if any, when certified by the justice having control of the docket, shall be evidence to prove the facts stated in such transcript:" Comp. Laws, § 3893.

Thus it appears a justice's court, though not a court of record, because it has no seal, is authorized to keep a docket, and, being clothed with common law jurisdiction for the trial of causes, such docket, "although not technically a record, is at least elevated to the dignity of a specialty;" "it has all the effects of a record:" Niles v. Totman, 3 Barb. 594; Rood v. School Dist. No. 7, of Town of Bloomfield, 1 Doug. 502.

(The following cases were cited as sustaining the point that a justice's docket, as to the appearance and plea of a defendant, cannot be collaterally disproved:) 23 Me. 114; 12 Vt. 538; Id., 657; 35 Maine; 1 Richardson 147; 3 Whart. 159; 3 Barb. 597; 4 Shep. 18; 4 Dana 499; Stohoff v. Dunham, 4 Harr. 181; Smith v. Shackleford, 9 Dana 452; Brintnall v. Foster, 7 Wend. 103; McCarty v. Marsh, 1 Seld. 263; Dyckman v. The Mayor of New York, 1 Seld. 434; Seldon v. Wright, 1 Seld. 497; Stevens v. Maugum, 27 Miss. 481.

I am unable to see any reason why the sworn judgment entries of justices of the peace in this state (such as they are required to make), with their enlarged jurisdiction, "vested with all such powers as are usual in courts of record, except the power of setting aside a verdict and arresting judgment thereon" (Comp. Laws, § 3656), should be open to contradiction by parol, when the entries of a clerk of the circuit are not. They, at least, ought to be considered as sacred as judgment records of another state (Wilcox v. Kassick, 2 Mich. 165), or a constable's return.

There is no force in the objection to the introduction of the transcript. It is perfect; and the certificate of A. L Porter, the justice who had control of Morehouse's docket, in every particular, complies with the statute. The transcript recites all that is necessary to give the justice jurisdiction both of the person and subject matter, and the judgment is in due form. The certificate of Porter, which was in evidence, and returned to this court, shows most conclusively the county and state where the judgment was rendered. A docket from any other county or state would not be "under his control;" at least, there is a fair presumption raised that such judgment was rendered in the county of Branch. Certainly there is no denying that Porter was a justice of the peace in the ...