Peck v. Cavell

• Decision Date: 11 July 1867
• Citation: 16 Mich. 9
• Court: Michigan Supreme Court
• Parties: Abraham D. Peck v. Chas. H. Cavell, jr

16 Mich. 9

Abraham D. Peck v. Chas. H. Cavell, jr

Supreme Court of Michigan

July 11, 1867

Heard July 9, 1867

Error to Livingston circuit.

This was an action of ejectment brought to recover the possession of certain lands in Hamburg, Livingston county.

The defendant set up a title based upon sales on two executions issued on transcripts of justices' judgments, and filed in the circuit court.

Objections were made to the admission of said transcripts on the trial in the circuit court on account of several defects appearing in said transcripts, and which are stated in the opinion.

Judgment was rendered for defendant in the court below.

Judgment reversed, with costs, and a new trial ordered.

Norris & Uhl, for plaintiff in error:

1. The statutes regulating transcripts of justices' judgments being contrary to the course of the common law and ex parte will be construed with the utmost strictness; and the proceedings of creditors acting in pursuance of such statutes should be scrutinized closely to prevent gross injustice and overreaching: 3 Mich. 198; 5 Id. 98.

The transcript in this case is defective, because:

a. It does not appear that the justice was requested to issue executions on the judgments sued upon, previous to giving transcripts: Comp. L., § 3789.

b. The executions should not have been returned till after the 60th day. In this case the debtor should have had the whole of that day to pay in: Comp. L., §§ 3786, 3789; 10 Mich. 496; 8 Cow. 260; 2 Id. 605; 6 Id. 659; 2 Hill 356.

c. It does not appear by affidavit, what was due him upon the judgments.

d. The return of the execution was made upon Sunday, and is therefore a nullity.

O Hawkins, for defendant in error.

Cooley, J. Christiancy and Campbell, JJ. concurred. Martin, Ch. J. did not sit.

OPINION

Cooley J.:

The plaintiff having shown a prima facie right in himself to the recovery of the premises in question, the defendant sought to defeat that right by showing sales on two executions against the plaintiff, issued on transcripts of justices' judgments which had been filed in the circuit court. A portion of the premises was sold on each of the executions.

The statute only authorizes a transcript to be filed in the circuit court after execution has been issued by the justice and returned unsatisfied; and it is objected that it does not appear from the transcripts that any execution was ever properly issued in these cases, inasmuch as the evidence does not show that the executions were issued at the request of the plaintiffs in the judgment. The transcripts only state when and to what officer the executions were issued; but as these are the only facts which the statute requires to be entered on the docket in relation thereto (Comp. L., § 3890, clause 12), and as the transcript is to be a correct copy from the docket (Comp. L., § 3786), we think the objection not tenable. If the justice enters upon the docket in regard to his own proceedings all that the statute requires, the ordinary presumption in favor of the correctness of official action must support the proceedings.

It is also objected that the executions issued by the justice were returned prematurely. Both appear to have been returned...