Morton v. Crane

• Decision Date: 31 October 1878
• Citation: 39 Mich. 526
• Court: Michigan Supreme Court
• Parties: Benjamin F. Morton v. John G. Crane

39 Mich. 526

Benjamin F. Morton v. John G. Crane

Supreme Court of Michigan

October 31, 1878

Submitted October 17, 1878

Error to Washtenaw.

Trespass on the case. Plaintiff brings error.

Judgment affirmed with costs.

Joslin & Whitman for plaintiff in error. A justice is liable for illegal ministerial acts, to the party injured thereby Houghton v. Swarthout, 1 Den. 589; Wall v Trumbull, 16 Mich. 235; Christopher v. Van Liew, 57 Barb. 17; Mastin v. Duncan, 17 Amer. L. Reg., 564; and making entries in his docket and issuing process are ministerial acts, Hickey v. Hinsdale, 8 Mich. 272; People v. Lowell, 9 Mich. 148; LaRoe v. Roeser, 8 Mich. 541; Tompkins v. Sands, 8 Wend. 462; Percival v. Jones, 2 Johns. Cas., 49; when a justice enters judgment and issues execution against a defendant who has not been served with summons, there being no return showing such service, and no appearance by defendant, he is liable as a trespasser for acts done under the execution, Freeman on Judgments, § 530, n. 4; Herman on Executions, 220-1; Inos v. Winspear, 18 Cal. 397; Tobin v. Addison, 2 Strobh 3; Holtzman v. Robinson, 2 Mac-Arthur, 520; Harrington v. People, 6 Barb. 610; Adkins v. Brewer, 3 Cow. 209; Bigelow v. Stearns, 19 Johns. 39; Mills v. Martin, 19 Johns. 7; Borden v. Fitch, 15 Johns. 121; Bloom v. Burdick, 1 Hill 139; Wright v. Douglass, 10 Barb. 110.

Frank Emerick for defendant in error. A justice is not bound to require proof of the authority of one who appears as attorney for one of the parties if the other does not object to his appearance, Ackerman v. Finch, 15 Wend. 652; Sperry v. Reynolds, 5 Lans. 407; a party to a judgment can impeach it for defect of process or insufficiency of service only by proceedings instituted directly for the purpose, Hendrick v. Whittemore, 105 Mass. 23; Goodsell v. Leonard, 23 Mich. 374; Brown v. Nichols, 42 N. Y., 26; if the attorney exceeds his authority, he is answerable for any injury that results from it to his client, Ingalls v. Sprague, 10 Wend. 672; Armstrong v. Craig, 18 Barb. 387.

OPINION

Cooley, J.

Morton sued Crane, who is a justice of the peace, for entering up judgment against him without jurisdiction, in an action instituted by one Rose, and issuing execution thereon by virtue of which the property of Morton was seized and sold. The main facts in the case are not in controversy, and the questions in dispute are purely questions of law.

The proceedings in the suit by Rose against Morton are in evidence, and they are full of errors. The suit was commenced by summons, and Rose being a constable, the summons was put into his hands for service. There are decisions in New York which hold that where the first process in a suit is not process against the body, the plaintiff if a constable and otherwise disqualified may serve it himself; though the same cases concede that he could not in his own suit serve a warrant or an execution. Bennet v. Fuller, 4 Johns. 486; Tuttle v. Hunt, 2 Cow. 436; Putnam v. Man, 3 Wend. 203. The reason for holding that he may serve the one process but not the others appears to be that in the case of a summons there is no special danger of abuse, while in the other cases there would be. We have not been able to assent to this conclusion. The danger of abuse in case of a summons consists in this, that the officer may falsely make return of a service never made, and thereby put himself in position to obtain judgment by default against a party who perhaps will hear of the proceedings for the first time when an execution appears against him. No danger of abuse from an officer serving his own process can be greater than this, and the practice which would subject the officer to this temptation should not be tolerated. The courts generally have adhered with great propriety and justice to the rule that in no case shall a man be officer and party in the same proceeding. Singletary v. Carter, 17 S.C. L. 467, 1 Bail. 467; Gage v. Graffam, 11 Mass. 181; Woods v. Gilson, 17 Ill. 218; Filkins v. O'Sullivan, 79 Ill. 524; Boykin v. Edwards, 21 Ala. 261; Ford v. Dyer, 26 Miss. 243; Chambers v. Thomas, 10 Ky. 536, 3 A.K. Marsh. 536. In Parmalee v. Loomis, 24 Mich. 242, this court declined to follow the New York cases, but at the same time held that the service by an officer of a summons in his own favor was an irregularity only.

In this case the service was made by copy, and under the statute, unless the defendant appeared, the plaintiff must take out a new summons in continuation of the suit. Comp. L., § 5263. Morton did not appear in person, but one Hitchcock appeared in his name, and consented to an adjournment of the case to a future day. Crane thereupon made an entry in his docket that "parties appeared," without showing how, and entered a continuance as was agreed. On the adjourned day there was no appearance for defendant, and Rose took judgment.

It now appears that Hitchcock was sent to Crane's office by Morton's father, with directions to answer for Morton in another case, but not to appear for him in the Rose suit, and that it was in disregard of his instructions that he answered for Morton when the Rose suit was called. His appearance in that case was therefore entirely without authority.

The complaint made against Crane is that he falsely entered on his docket that the defendant appeared. But had the appearance of Hitchcock been authorized, no complaint could have been made of this entry. It is proper that in every case the justice should make his docket show in what manner the parties appear, but there is no statute expressly requiring it. The party "appears" as much when he answers by attorney as when he answers in person.

But it is said the justice was not justified in permitting Hitchcock to appear for Morton without first enquiring into the facts, and that inquiry would have disclosed the want of authority. In effect, it is said, Crane gave to himself apparent jurisdiction to proceed by his unfounded assumption that Hitchcock was authorized; and that the want of authority appearing, the apparent jurisdiction is disproved.

No doubt the justice was very careless and blameable; but the question on this part of the case is whether in permitting Hitchcock to appear and adjourning the case he was acting judicially. The rule is too well settled for further controversy...