Sallee v. Ireland

• Decision Date: 10 April 1861
• Citation: 9 Mich. 154
• Court: Michigan Supreme Court
• Parties: Israel Sallee v. Silas Ireland

9 Mich. 154

Israel Sallee v. Silas Ireland

Supreme Court of Michigan

April 10, 1861

Heard January 15, 1861

Case made after judgment, from Cass circuit.

Ireland as purchaser of certain lands on a sale of mortgaged premises under the statute, took proceedings before the circuit court commissioner to recover possession thereof. The summons issued by the commissioner was issued January 9, 1860 returnable January 12th, and was served January 10th. On the return day the defendant appeared, and moved to quash and dismiss the proceedings, for the reason that there was not a sufficient length of time between the time of the issue and the return, nor between the time of the service and the return of the summons, and the commissioner took time for rendering his decision upon the motion; the complainant stipulating to submit the motion without argument if the defendant would plead to the complaint; and defendant thereupon pleaded not guilty.

On a subsequent day, the motion was denied, and judgment rendered for complainant, from which defendant appealed to the circuit court, where he renewed his motion to quash and dismiss. The circuit court overruled the motion, and judgment was again rendered for complainant on the merits. After judgment a case was made, which embodied the commissioner's return to the appeal, but not the affidavit on which the appeal was based. This case purported to have been "settled and signed" by the circuit judge.

The positions of counsel in this court sufficiently appear by the opinion.

Judgment reversed, and the defendant recover his costs in both courts, as well as before the commissioner.

Clarke & Spencer, for plaintiff in error.

F Muzzy, for defendant in error.

OPINION

Christiancy J.:

It is objected by the counsel for the complainant, that this case does not appear to have been made and notice thereof served within ten days after notice of judgment, nor that notice was given to appear before the judge who tried the cause to have the case settled according to rule 81 of the circuit courts, and that the right to have the case settled is, therefore, waived under rule 82.

It is a sufficient answer to this objection to say that the want of these prerequisites does not appear. The case appears to be duly signed by the circuit judge, and purports to have been settled before him. All the previous steps necessary to its settlement must, therefore, at least in the absence of any showing to the contrary, be presumed to have been regularly taken.

It is further objected that no notice can be taken of any defect in the summons or its service, because the right to make a case for review in this court, under this statute, is confined to questions of law arising upon the evidence.

However this might be under § 3438 Compiled Laws (upon which we give no opinion), we are satisfied that § 3421 Comp. L. gives a general power of making a case after judgment for review in this court, and that, under this section, a case may be made containing the record, or a statement of so much of it as may be material to the questions to be raised, and that, when the case is so made, any question arising upon the record, as stated or set forth in the case, is properly subject to adjudication in this court.

It is further objected by the counsel for the appellee that § 4998 Compiled Laws, providing for an appeal from the commissioner, had the effect, at the time of its passage in 1846, to incorporate § 140, ch. 93, Revised Statutes of 1846; that this section being repealed by the subsequent act of 1855, section 184 of the latter (Comp. L., § 3836) takes the place of § 140, Revised Statutes of 1846, ch. 93, and governs the appeal in this case, and that to enable the defendant to take advantage of the defect in...