Souvais v. Leavitt
| Citation | 53 Mich. 577,19 N.W. 261 |
| Court | Supreme Court of Michigan |
| Decision Date | 30 April 1884 |
| Parties | SOUVAIS v. LEAVITT and others. |
Where the records of a court are offered in evidence containing omisions or errors, by which neither party has been misled the mistakes may be corrected, and the omissions supplied nunc pro tunc.
A discharge after issue has been joined is not admissible in evidence under the general issue.
Rulings upon questions of pleading are largely in the discretion of the trial court, and will not be accounted error unless that discretion has clearly been abused.
Where after more than two months had elapsed since joinder of issue, the defendant offered to change his plea by pleading a discharge, which had been known to him all the while, held that it was within the discretion of the trial judge to reject the plea.
Error to superior court of Detroit.
Stewart & Galloway, for plaintiff.
F.A Baker, for defendants and appellants.
This action is brought upon a bond in the penal sum $7,600, dated July 10, 1882, the condition of which was as follows:
"Whereas, judgment has been rendered in the superior court of Detroit, in favor of said Amable Souvais against the said Alvah E. Leavitt, for three thousand seven hundred and sixty and 86-100 dollars, damages and costs, in which judgment and proceedings the said Alvah E. Leavitt complains that there is error in substance, and to be relieved therefrom hath obtained a writ of error to remove the same to the supreme court, to the end that the error made therein may be corrected: Now, therefore, the condition of this obligation is such, that if said Alvah E. Leavitt shall prosecute his said writ of error to effect, and shall pay and satisfy such judgment as shall be rendered against him upon the said writ of error in said supreme court, then this obligation to be void, otherwise to remain in full force and virtue."
The declaration alleged the affirmance of the judgment in the supreme court. The defendants, who were Leavitt and his sureties in the bond, pleaded the general issue. Issue was joined June 30, 1883. The case was brought to trial December 28, 1883, before a jury. When the plaintiff put in the record evidence of his judgment, it was found that the journal of the superior court for the day in which judgment was rendered had never been signed by the judge, and that in the entry of the judgment, by some blunder of the clerk, the sum stated was a much smaller sum than the sum for which judgment had been directed. The judge, against the objection of defendants, signed the journal nunc pro tunc, and directed that the entry of judgment should be corrected. When the plaintiff had rested his case, the defendants offered in evidence an instrument purporting to be signed by the plaintiff, dated October 17, 1883, which recited said judgment, and acknowledged full payment and satisfaction thereof, and of all costs in the superior court and the supreme court, in consideration of the sum of $3,000, the receipt of which was acknowledged. Counsel for the plaintiff objected that the discharge, having been given since issue joined, was not admissible without being specially pleaded and the court sustained the objection. Defendants then asked leave to plead the discharge puis darrein continuance. This was objected to on the part of the plaintiff, who claimed that the paper was obtained from him by fraud. The court declined to permit the plea to be filed, and the plaintiff took a verdict for the amount of the judgment and interest. The plaintiff then, admitting that he had received $3,000 from the defendants, entered a remittitur to that amount, with interest from the time he received it. Defend...
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