Holcomb v. Tift

• Decision Date: 23 September 1884
• Citation: 54 Mich. 647,20 N.W. 627
• Court: Michigan Supreme Court
• Parties: HOLCOMB v. TIFT.

20 N.W. 627

54 Mich. 647

HOLCOMB v. TIFT.

Supreme Court of Michigan

September 23, 1884

Case made from Newaygo.

W Wisner Taylor, for plaintiff.

Geo Luton, for defendant.

CAMPBELL J.

This suit was originally brought on a justice's judgment upon a cause of action against Jury Mason and Le Roy Tift. Tift was the only defendant served. The justice, in rendering judgment, seems to have used the word "defendant" instead of "defendants." But, inasmuch as the statute provides what judgment shall be rendered on joint debts where only one party is served, this is a mere clerical misprision, and the judgment, not having been taken up by certiorari or appeal, must stand as a valid judgment for all purposes against the defendant who was served. Allen v. Mills, 26 Mich. 123; Zimmer v Davis, 35 Mich. 39.

The present action, being assumpsit on that judgment, was brought, at first, against both parties, but discontinued as to Mason, and carried to judgment against Tift. Objection was made to the transcript of the earlier judgment, because it was made by another justice, and because it was claimed to be defectively proved. This objection is not well taken. It was certified by a justice, who showed by his certificate that the docket was in his possession. And we must presume that the William H. Hicks who was shown to be a justice is the person who, as such, certified the transcript. Facey v Fuller, 13 Mich. 527. We think there was no error in allowing judgment in the present case against Tift alone. The old judgment, although joint in form, was in no legal sense a joint obligation binding both alike. It bound Tift, but it did not conclusively bind Mason. It did not merge the debt on which it was founded, so as to preclude its being sued over against both. Bonesteel v. Todd, 9 Mich. 371. It was never binding on Mason...