Harrison v. Sager

• Decision Date: 17 July 1873
• Citation: 27 Mich. 476
• Court: Michigan Supreme Court
• Parties: Michael Harrison v. Joseph Sager

27 Mich. 476

Michael Harrison v. Joseph Sager

Supreme Court of Michigan

July 17, 1873

Heard July 16, 1873

Error to Kalamazoo Circuit.

Motion to dismiss granted, and the judgment rendered upon appeal reversed, with costs.

O. T Tuthill, for plaintiff in error.

Edwards & Sherwood, for defendant in error.

Christiancy Ch. J. Graves and Cooley, JJ., Campbell, J. concurred.

OPINION

Christiancy, Ch. J

This cause was brought to the circuit court on an appeal from a justice of the peace, and comes to this Court by writ of error. A preliminary question arises upon a motion made in the circuit court by the plaintiff in error (who was defendant in the appeal), which was denied, to dismiss the appeal on the ground that it appeared from the justice's return to the appeal, that the judgment of the justice was rendered more than four days after the trial; that it was therefore a void judgment, and gave the circuit court no power to entertain the appeal, which is an ordinary appeal upon the merits, and not a special appeal in the nature of a certiorari.

The record states: "The said cause was then adjourned until the 12th day of October, 1870, at one o'clock in the afternoon, at which time the parties again appeared before me, and the cause was tried by me without a jury. After hearing the proofs and allegations in the cause, I take four days to deliberate on the matter. After due deliberation I decide, no cause of action, and on the 17th day of October, 1870, I render judgment against the plaintiff, the sum of ten dollars, costs of suit."

The statue (Comp. L. 1871, § 5486, sub. 7) requires the justice to enter upon his docket (among other things) "the time when a trial was had;" and by subdivision 10, of the same section, the time of rendering the judgment. By this return it appears the trial was had on the 12th of October, and the judgment rendered on the 17th.

Section 132 of the justice's act (Comp. L., § 5380) as to actions tried before him without a jury, as this was, provides that "he shall render judgment and enter the same in his docket, within four days after the same shall have been submitted to him for his final decision." The four days after the trial expired on the 16th, and the judgment was not rendered until the fifth day.

The counsel for the defendant in error does not claim that this statue is not mandatory. But he insists that the record does not show that the cause was submitted to the justice for his final decision on the twelfth, and that in support of the judgment we are bound to presume that though stated to be tried on the 12th, it was not submitted for decision until the next day. We cannot concur in this view of the record. When it states the trial was had on the 12th, we understand it to mean that the trial was closed and completed on that day, and it would be a forced presumption, in face of this language, to hold that the trial continued into the next day; such a presumption is negatived by the ordinary and natural meaning of the language.

But on reference to the calendar, it is found that the 16th day of October, 1870 (the last of the four days), was Sunday; and it is urged that the statute was intended to give the justice four days in all cases, to consider of his judgment; that Sunday ought, therefore, to be excluded. This, however, is not the language of the statute. It does not declare that the justice shall have four days to consider of his judgment, but requires him, at all events, to...