Hazen v. Reed
| Citation | 30 Mich. 331 |
| Court | Supreme Court of Michigan |
| Decision Date | 13 October 1874 |
| Parties | Isaac D. Hazen v. Henry G. Reed |
Heard July 25, 1874
Error to Kent Circuit.
Judgment reversed, with the costs of both courts, and a new trial ordered.
Taggart Simonds & Fletcher, for plaintiff in error.
Thompson & Reeves, for defendant in error.
The defendant in error purchased a farm worth some five thousand dollars, on which there was a mortgage, made by one Parish and wife to the plaintiff in error, to secure eight hundred dollars, with interest, and the purchase was made subject to such mortgage.
On the 6th of December, 1870, Reed sent to Hazen by one Wesley Wheeler, one hundred and seventy-five dollars in money, to be paid on the mortgage, and Hazen received the money and sent back his receipt in these terms:
Hazen instituted proceedings in the court of chancery to foreclose the mortgage, and carried them to a final decree. He made the mortgagors, Parish and wife, and Reed, and one Peak, defendants, and the only reason alleged in the bill for joining the two latter was, tat they had, or claimed, some right or interest as subsequent purchasers, incumbrancers, or otherwise.
All the defendants appeared, and hence entitled themselves to notice of the subsequent proceedings. A copy of the bill was served, but the defendants failing to plead, answer, or demur, the bill was taken as confessed in April, 1872, and a reference was made to take proofs, and ascertain and report the sum due. On that reference, Hazen was sworn as a witness, and he testified that he received only seventy-five dollars, and not one hundred and seventy-five dollars, to be applied on the mortgage. There was no receipt on the note or mortgage of any portion of the sum paid on the 6th of December. The record fails to show whether any of the defendants attended on the reference, and is equally silent as to whether they had notice or not. It is reasonable to suppose, however, that notice was in fact given, because it was the duty of complainant to give it, and it does not appear that any question was ever made that it had been omitted. Besides, the subsequent proceedings implied that the reference had gone on regularly: Stockton v. Bishop, 4 HOW 155; Townsend v. Jemison, 7 HOW 706.
It must not be taken for granted, however, from these observations, that if it had appeared on the face of the chancery record that no notice was given, we should regard the defect as one liable to be urged by the defendant in this case, to avert the operation of the decree against his claim. The case does not raise any such point, and we do not discuss it. We only say now, that, looking at the record, it is fair to infer that the defendants, including Reed, had an opportunity to attend the reference.
On the 4th of May, 1872, a final decree of foreclosure and sale was made, and on the 2d of January, 1873, Reed filed his petition in that cause to have the decree opened, and for a rehearing. This application came on to be heard in the succeeding March, and affidavits on each side were read. The court denied the motion, and allowed the decree to stand as made. Reed finally, in the language of the record, "paid the amount due on the mortgage." Subsequently he sued Hazen before a justice to recover the one hundred dollars, which he alleged had not been applied. The justice sustained the right of action, and gave judgment accordingly. Hazen appealed, and the cause was tried in the circuit before a jury. He insisted in that court that the decree in chancery was a valid bar, but the defense was overruled, and Reed again prevailed. Hazen then sued out this writ of error.
The apparent strong ground of moral right in favor of the defendant in error is certainly well adapted to induce the judicial mind to look earnestly for some principle or distinction adequate to uphold the recovery below.
Still, however manifest and strong the natural equities in the specific instance may be, the court may not depart from the settled rule of law in order to do what may be deemed substantial justice in the particular case.
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In re Kalita
... ... Jacobson v. Miller, 41 Mich. at 94, 1 N.W. 1013 (citing Hazen v. Reed, 30 Mich. 331 (1874)). Without using the terms "res judicata" or "collateral estoppel," Justice Cooley nevertheless recognized a ... ...
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...theory, was a wilful and malicious injury. The fact that it was a default judgment does not alter the situation in this respect. Hazen v. Reed, 30 Mich. 331;Jacobson v. Miller, 41 Mich. 90, 1 N.W. 1013. See, also, Hoadley v. Gafill Oil Co., 241 Mich. 15, 216 N.W. 407;Peters v. Sturmer, 263 ......
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...facts put in issue and found, upon which the recovery is based. Caperton v. Schmidt, 26 Cal. 479; Lee v. Kingsbury, 13 Tex. 68; Hazen v. Reed, 30 Mich. 331; Boom v. Paul F. & M. Co., 33 Minn. 253; McClung v. Condit, 27 Minn. 45; Thompson v. Myrick, supra; Bazille v. Murray, 40 Minn. 48; Cro......
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