Mercer v. Lowell National Bank

• Decision Date: 28 April 1874
• Court: Michigan Supreme Court
• Parties: William Mercer v. The Lowell National Bank

29 Mich. 243

William Mercer v. The Lowell National Bank

Supreme Court of Michigan

April 28, 1874

Heard April 23, 1874

Error to Kent Circuit.

Assumpsit. Defendant brings error. Reversed.

Judgment of the circuit court and that of the justice reversed, and the plaintiff in error recovered his costs in this court and the circuit court, including the cost paid the justice on the removal of the cause from that court.

O. H Look, and Hugh McCurdy, for plaintiff in error.

John M Mathewson, for defendant in error.

Christiancy J. Campbell and Cooley, JJ., concurred. Graves, Ch. J., did not sit in this case.

OPINION

Christiancy, J.

A suit in attachment was brought by defendant in error against the plaintiff in error before one Robert Hunter, a justice of the peace in the township of Lowell, in Kent county, the writ being returnable on the 21st day of July, 1873, at which time the parties appeared before the justice, the plaintiff filed his declaration, and the defendant pleaded the general issue verbally, and reserved the right to file written notice of special matters of defense within three days; and on motion of defendant the cause was adjourned to the 25th July, at 9 o'clock, A. M.

In the meantime, after the service of the attachment, and before the return day, viz.: on the 17th day of July, said Mercer, defendant in the attachment, had made application to a circuit court commissioner of the county, at Grand Rapids, for a dissolution of the attachment as provided by the statute, the hearing of which was fixed by the commissioner for the 22d July at his office in Grand Rapids, and on that day the plaintiff and defendant in the attachment appeared before the commissioner, and the plaintiff made application for a continuance of the hearing, and upon that application the commissioner continued or adjourned the hearing to the 1st day of August at 9 o'clock, A. M., at his office in said city of Grand Rapids, and on the 22d day of July the defendant caused subpoenas to be issued and served upon his witnesses to appear and testify before the commissioner on the hearing of his application on the adjourned day, the first of August.

Such was the position of the two cases (the attachment before the justice and the application for its dissolution before the commissioner), when, on the 25th July, the day to which the cause before the justice had been adjourned, the parties appeared before the justice, and the defendant applied for an adjournment of the cause for two weeks, and made an affidavit as the basis of his motion, showing that he was unable to proceed to the trial of the cause, on account of the absence of material and necessary witnesses, whose attendance he was unable to procure, and also showing diligence in the attempt to procure service of subpoena upon one of the witnesses, and his failure to procure it. But the justice, before he would grant any continuance, required the defendant to state by further affidavit what he expected to prove by such absent witness, which he did, and asked for the adjournment for two weeks. But the justice refused to grant it for the two weeks as requested, but granted an adjournment to the first day of August at 9 o'clock, A. M., the same day and hour to which the hearing of the application before the commissioner had already been adjourned, he being aware of that fact. And the affidavit presented by the defendant for the adjournment asked for on August 1st, which is a part of the affidavit for the certiorari in this case, states, and it was substantially admitted upon the argument here, and is fairly enough inferable from the counter affidavit of plaintiff's attorney on the 1st of August, that the justice was also notified by the defendant's attorney, before the entry of the adjournment, that the defendant could not attend or be present to try the cause before him on the first day of August, because of the hearing of the application before the commissioner, which was fixed for the same day and hour at Grand Rapids, which was at considerable distance in another and not even adjoining township, and that he requested and urged the justice to grant the adjournment for two weeks. And notwithstanding the formal statement of the justice that "the adjournment from July 25th to August 1st was made with out objection, as to the day, on the part of defendant's attorney," it is clear from the whole return, when construed with reference to the affidavit for certiorari, the counter affidavit of the plaintiff's attorney (against a continuance) on the 1st of August, and the grounds on which the justice says he refused the adjournment, that he does not mean to deny, and that he virtually admits, that when he, on the 25th of July, refused to give the adjournment for two weeks asked by the defendant, and fixed the time on the 1st of August at 9 o'clock A. M., he was aware of the fact that the hearing of defendant's application before...