Polhemus v. Ann Arbor Sav. Bank

• Citation: 27 Mich. 44
• Court: Supreme Court of Michigan
• Decision Date: 15 April 1873
• Parties: Jacob A. Polhemus v. The Ann Arbor Savings Bank

27 Mich. 44

Jacob A. Polhemus v. The Ann Arbor Savings Bank

Supreme Court of Michigan

April 15, 1873

Heard January 15, 1873

Plaintiff in error moved to strike the case from the docket as improperly noticed for hearing for the reason that it was not in a condition to be noticed.

The bill of exceptions was removed from the files for amendment by order of the court by consent at the October term; and the amendments were not completed and the bill of exceptions had not been returned when the notice of hearing was served.

Lawrence & Frazer, for the motion.

C. D Coleman, contra.

The Court held that the case was still in this court notwithstanding the removal of the bill of exceptions for amendment, and was subject to be noticed for hearing.

Motion denied, with costs.

Error to Washtenaw Circuit.

The sixth, seventh, eighth, and ninth assignments of error referred to in the opinion were as follows:

"6. The said circuit court erred in each of its rulings and decisions shown by the bill of exceptions in this cause rejecting each matter of evidence which was offered to be proved on the part of said Polhemus, and rejected by said circuit court, to which exception was taken on the part of said Polhemus, as shown by the said bill of exceptions, assigning error on each of said rulings and decisions separately.

"7. The said circuit court erred in each of its rulings and decisions overruling each of the objections made on the part of said Polhemus to the reception of evidence offered on the part of said bank, which was received in evidence and excepted to on the part of said Polhemus, as shown by said bill of exceptions.

"8. The said circuit court erred in each of its decisions excepted to as shown by said bill of exceptions.

"9. The said circuit court erred in giving the judgment shown by the record in this cause."

Judgment affirmed, with costs.

Lawrence & Frazer and H. J. Beakes, for plaintiff in error.

C. D. Coleman, for defendant in error.

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

OPINION

Graves, J.

This is a writ of error to the circuit court for the county of Washtenaw.

The bank sued the plaintiff in error in assumpsit, and the declaration by which the suit was commenced counted specially on a note alleged to be of the following tenor:

"Canton, March 4, 1870.

"Eighteen months after date, I promise to pay to the order of Ja. A. Saxton, in Ex. on New York, thirty-two hundred twenty-three dollars, at Miller & Webster's Bank, Ann Arbor, Michigan, with 7 per cent. interest from Feb. 18, 1870.

"J. A. Polhemus."

Endorsed, "Ja. A. Saxton.

The money counts were also added, together with a copy of the note and endorsement.

The declaration was filed in December, 1871, and on the 22d of January following the plaintiff in error pleaded the general issue, accompanied by a notice that he would defend upon several grounds, none of which, however, indicated that the note set up was not genuine, and no affidavit was made on the subject. In July, 1872, the cause was tried on these pleadings, by the court without a jury, and judgment was given in general form in favor of the bank.

Several errors are assigned, but the sixth, seventh, eighth and ninth are clearly insufficient under the rule requiring assignments of error to be special, and the observations of my brother Cooley in Altman v. Wheeler, 18 Mich. 240, are so strictly applicable as to make further comment unnecessary. We may add, however, that on an inspection of the record we fail to discover satisfactory ground for any objection apparently hinted at by these assignments.

The fourth assignment maintains that the "court erred in refusing to permit the said Polhemus to inquire into the consideration of said note and to contest said note in respect to the consideration thereof." Without pausing to criticize the form of this assignment in its bearing upon the return to the writ of error, it is sufficient to say that the defense shadowed forth in the record was not available against the bank. No right to such defense existed if the bank became the holder of the note in good faith and for value, and the evidence upon this point was not only direct and clear in favor of the bank, but unopposed, so far as we discover, by any thing proved or offered of a contrary tendency. The court sitting without a jury and bound to pass upon the facts as well as the law, ruled that the bank became the holder in good faith and for value, and excluded the defense. We see nothing to impugn the correctness of this action of the court.

Whether we should be authorized to re-examine a decision of this character, made during the trial by the court when exercising the functions of both court and jury, and deciding the facts as well as the law, if the evidence relating to the point should be seen to have been conflicting, is a question we have no occasion to consider, and do not determine.

The plaintiff in error further complains because he was not allowed to show that the note, as described in the declaration and as produced in evidence, was not as he executed it.

The record effectually answers this objection. The case was being tried without any affidavit questioning the genuineness or identity of the instrument. As a consequence it stood admitted by the record that the note was given substantially in the form specified in the declaration, and this admission the plaintiff in error was not at liberty to contradict. A material variance between the contract as pleaded and as shown in the evidence would of course have raised a point available to him.

The objections which seem to be chiefly relied on relate to and grow out of the action of the court upon an application by the plaintiff in error for leave to amend by putting in an affidavit denying the execution of the note.

The return to the writ of error embraces a bill of exceptions, and we also find included, this motion, the affidavits and exhibits connected with it, and the decision of the court in denying it. These proceedings are also embodied in the bill of exceptions. The motion appears to have been made some four months after the plea, and to have been decided about six weeks after it was made. In passing upon it the court declared that it had no power to grant it, and therefore refused it without considering the merits, and the plaintiff in error excepted.

We think the court misapprehended the meaning of the rule in supposing a lack of power to grant or refuse the motion according to its view of the real merits of the application. The rule as framed was intended to leave a discretionary authority to be exercised as the justice of particular cases should require, so that parties could be let in after pleading, upon good cause. The motion, then, was really an appeal to the discretionary power of the court below, and might have been granted or denied upon the merits in the exercise of that power. If the court had acted upon that view,...