Parsons v. Dickinson

• Decision Date: 02 May 1871
• Court: Michigan Supreme Court
• Parties: Philo Parsons v. Joshua B. Dickinson

23 Mich. 56

Philo Parsons v. Joshua B. Dickinson

Supreme Court of Michigan

May 2, 1871

Heard April 25, 1871

Error to Wayne circuit.

The facts are sufficiently stated in the opinion.

Judgment of the circuit court reversed and that of the justice affirmed.

F. H Canfield, for plaintiff in error.

John J Speed, for the defendant in error.

OPINION

Cooley, J.:

This case originated in justice's court. The cause of action was an indorsement by Dickinson of a promissory note made by one Kibbee, payable at the First National bank of Detroit. The defense was that defendant was never legally notified of the dishonor of the note. The justice gave judgment for the plaintiff, which was reversed by the circuit court on certiorari, and the judgment of reversal is now before us for review.

All the evidence in the case was set forth in the return to the certiorari, but it is conceded that the circuit court had no authority to review it for the purpose of determining the correctness of the decision of the justice upon disputed questions of fact, and could only reverse the judgment for errors of law. Several errors were assigned in the affidavit for certiorari, but they may be summed up in two:First: That the justice erred in receiving evidence of the custom at the bank as to making inquiries for the residence of indorsers when they were unknown to the officer to whom paper was committed for protest;Second: That the justice erred in rendering judgment in favor of the plaintiff when there was no evidence in the case tending to show that proper steps had been taken to fix the liability of the defendant as indorser.

To an understanding of the bearing of these objections, it is necessary to state that when the note fell due, the defendant was a resident of Macomb county, and that the only notice given him was one deposited in the post office, directed to him at Detroit. To show that proper diligence was used to ascertain the residence of defendant, the deposition of the notary public who protested the note was taken, and he testified to various inquiries made by him concerning the defendant's residence, without result. He also testified, under objection, to the custom at the bank where the note was payable, as to the diligence which should be used in finding an indorser. At the trial before the justice, this deposition was put in evidence, but it does not appear that objection was there made to the same or to any part thereof as incompetent.

The defendant appears to have supposed that it was sufficient for him to make his objection before the officer who took the deposition. In this he was laboring under an error. That officer had no authority to pass upon such objections, or to rule out for incompetency any evidence which the party should insist upon taking. Objections would be taken there for...