Pardee v. Smith

• Citation: 27 Mich. 33
• Court: Supreme Court of Michigan
• Decision Date: 15 April 1873
• Parties: Amasa M. Pardee v. James Smith

27 Mich. 33

Amasa M. Pardee v. James Smith

Supreme Court of Michigan

April 15, 1873

Heard January 13, 1873

Error to Jackson Circuit.

Judgments reversed, with costs of all the courts to plaintiff in error.

G. T Gridley, for plaintiff in error.

Johnson & Montgomery, for defendant in error.

OPINION

Graves, J.

The plaintiff in error Pardee, was a justice of the peace of the township of Spring Arbor, in Jackson county, and on the 26th of June, 1871, one John S. Patterson made to him in writing and on oath the following statement and representation:

"State of Michigan, County of Jackson, ss.

"John S. Patterson being duly sworn upon his oath, makes complaint and says that one James Smith has incurred a penalty by the violation of section 1588, chapter 44 of the Compiled Laws of the State of Michigan, on page 502; that the said James Smith on the first day of June, A. D. 1871, and on divers other days and times since that, and is now at this date, at the township of Hanover, in said county of Jackson, engaged in keeping in his house, there situate, a table for the purpose of playing at billiards for hire, and that persons do resort thereto for the purpose of playing at billiards, with the knowledge and consent of said Smith, and this complaint is made for the purpose of having said Smith arrested for said offense.

(Signed) "John S. Patterson.

"Sworn and subscribed to this 26 day of June, A. D. 1871.

"By A. M. Pardee, Justice of the Peace."

The plaintiff in error thereupon issued a warrant directed to the sheriff or any constable of the county, and reciting the complaint, and then proceeding in the following terms: "And, whereas, on examination on oath of the said by me, the said justice of the peace, it appears to me the said , that the said offense has been committed, and there is just cause to suspect the said Smith to have been guilty thereof; therefore, in the name of the people of the state of Michigan, you and each of you are hereby commanded forthwith to take the said James Smith and bring before me, the said undersigned justice of the peace, to be dealt with according to law. Given under my hand and seal, at Spring Arbor, in said county, on the 26th day of June, A. D. 1871.

(Signed) "A. M. Pardee, Justice of the Peace."

The defendant in error, Smith, was arrested on this warrant, and taken before the plaintiff in error towards night on the 27th of June, and at once informed Pardee that he was ready for trial; but Pardee informed him that it was then late, that the complainant was not there, and that the business could not go on then.

The case was accordingly then postponed by Pardee, and Smith was left in the custody of the arresting officer. The record fails to disclose all that occurred on this occasion, and it does not appear from it whether Smith consented to the postponement or not, or whether he made any objection to being left in the care of the officer. There are some indications that Pardee proposed that bail should be given and that Smith declined, but they are faint and unimportant.

On the 29th of June, Smith appeared, attended by Mr. Snow as his counsel, and another gentleman of the bar appeared and responded for the people.

At this time Smith's counsel objected to the proceedings on the ground that the word "billiard" in the warrant was spelt with one "l" instead of two; and this objection which was overruled, seems to have been the only one raised by Smith. The way was then deemed open for further proceeding, and without any question on either side as to the propriety or regularity of such a course, a declaration was filed in the name of the people, founded on the law mentioned in the complaint, but in the form of indebitatus assumpsit, and alleging a promise by Smith to pay the people one hundred dollars; and to this, Smith pleaded the general issue. Thereupon on his motion the case was adjourned until the 8th of July, and at which time, also on his motion, a jury was called, and the issue on the declaration and plea was tried and a verdict found against him for eight dollars damages, upon which judgment was entered. None of these proceedings appear to have been appealed from or disturbed.

About two days after this judgment, Smith brought an action against Pardee before another justice, in the form of trespass for false imprisonment, and counted upon his arrest and custody under the before mentioned warrant as his actionable grievance. He recovered twenty-eight dollars damages and his costs. Pardee obtained a review of this judgment in the circuit court by certiorari, and the judgment was affirmed. He then sued out this writ of error.

The correctness of the judgment of the court below is admitted to depend upon the validity of two objections brought against the early proceedings in the case against Smith, and it is not contended that the judgment against Pardee can be supported if such objections ought not to prevail.

These objections are: First, that Pardee as a justice of the peace acquired no jurisdiction to issue the warrant against Smith, because, as is claimed, the complaint was insufficient in this: that it did not state that his house where the table was kept, was "used or occupied by him;" and, second, that the prosecution was instituted by a private person and not by a public officer.

It will not fail to be observed that throughout the case before Pardee, Smith construed it as a civil and not a criminal proceeding, and shaped his course and defence on that assumption, and that his position in this court rests upon that hypothesis. It is also noticeable that the other side, from the time of the arrest, proceeded conformably to the same idea.

The whole proceedings, from the appearance on the 29th of June, were in form and substance civil. The validity of the first step is now called in question collaterally; and if that step was one in a civil prosecution, as Smith all along regarded and treated it, and as he still persists in construing it, and as Pardee, the justice, and the gentleman who appeared for the people, assumed it to be, on and after the appearance on the 29th of June, there would seem to be a decisive reason for holding that the defect in the complaint, if material, is not open to an objection by Smith in this action. It was, at most, as a showing for civil process, an irregularity or error not going to the jurisdiction. The statute defining the offense and giving the right to sue was expressly named, and it was also declared in round terms in the affidavit, that Smith had incurred the penalty prescribed. The nature of the offense imputed was not left in doubt, nor was Smith misled by the imperfection of the affidavit. The record discloses that in its inception the prosecution had the sanction of the prosecuting attorney, and that it was carried to completion under his authority. Pursuing the view then taken by Smith and on which he has steadily acted, and in which the other side have acquiesced since the appearance on the 29th of June, that the prosecution from its beginning was civil and not criminal, the warrant must be regarded as a mere civil capias to bring Smith into court; and if marked by irregularities or errors, however serious, but not going to the jurisdiction, it would not only not be exposed to attack in this collateral way, but would, after what occurred, be protected against objection based on such errors or irregularities, even though such objection were made in a direct proceeding to impeach the judgment.

He made no objection before Pardee except that a word was misspelled in the warrant. He procured an adjournment on his own motion. He joined issue upon the merits. He demanded a jury. He went to trial on the merits. He made no attempt, so far as appears, to have the proceedings set aside. If the proceedings were civil the imperfection in the showing for the warrant or capias was waved.-- Dempsey v. Paige, 4 E. D. Smith, 218; Swartwout v. Roddis, 5 Hill 118; Stewart v. Hill, 1 Mich. 265; Falkner v. Beers, 2 Doug. 117; Pixley v. Winchell, 7 Cow. 366; Stewart v. Howard, 15 Barb. 26; Hanson v. Hoitt, 14 N.H. 56; Smith v. Whittier, 9 N.H. 464; Carlisle v. Weston, 21 Pick. 535; Ripley v. Warren, 2 Pick. 592; Wright v. Jeffrey, 5 Cow. 15; Moore v. Stockwell, 6 Barn. & Cress., 76; Rittenour v. McCausland, 5 Blackf. 540; Dewey v. Greene, 4 Denio 93.

But the complaint and warrant were criminal and not civil proceedings. And when, on the 29th of June, the, parties hereto, and the gentleman who appeared for the people, proceeded as in case of a civil remedy, they misapprehended the nature of the complaint and warrant, and departed therefrom. This departure had the tacit assent of all, and it presents a very anomalous state of things.

The rule is general, that a defendant will not be permitted to avail himself of errors to which he himself is a party, and it is not impossible but that the court in this action would be justified on this and other grounds in holding Smith to the same law in reference to his objections as though the complaint and warrant had been civil proceedings, as all concerned treated them as being.

But, as it seems advisable to examine the case in another light which leads to the same conclusion, it is not needful to consider this view. The statute (Comp. L. 1857, § 1588; Comp. L. 1871, § 1998), on which the prosecution was based, enacts that every offender shall forfeit not exceeding one hundred dollars, "and shall further recognize with sufficient sureties in such reasonable sum as the court shall direct, for his good behavior, and especially that he will not be guilty of any offence against the provisions of this chapter for the term of one year, then next ensuing." It cannot fail to be observed...