Thomas E. Lynch Co. v. Carpenter

• Decision Date: 21 December 1901
• Court: Michigan Supreme Court
• Parties: THOMAS E. LYNCH CO. v. CARPENTER, Circuit Judge.

88 N.W. 387

129 Mich. 110

THOMAS E. LYNCH CO. v. CARPENTER, Circuit Judge.

Supreme Court of Michigan

December 21, 1901

Mandamus by the Thomas E. Lynch Company against William L. Carpenter Wayne circuit judge, to compel respondent to strike a justice's judgment from the files. Denied.

Walter M. Trevor, for relator.

Graves & Hatch, for respondent.

MOORE J.

The relator has filed this petition, stating, in substance: That it was sued in justice court by C. D. Widman & Co. That in that case the plaintiff appeared personally and by Wade Millis, an attorney at law in the employ of Graves & Hatch who conducted all the proceedings in justice court. That judgment was rendered against relator March 16, 1901. That on the 26th of March, 1901, Mr. Graves made an affidavit before Mr. Millis as the basis of a transcript from the judgment and a transcript was issued to the circuit court. An execution was issued. It was returned nulla bona, and afterwards a judgment creditors' bill was filed. It also appears that in the course of proceedings in that case, on May 27, 1901, the joint affidavit of Mr. Graves and Mr. Millis was filed, in which they state 'they have had charge of the above-entitled cause from the time the bill of complaint was filed until the date hereof.' In the chancery cause the only solicitors of record are Graves &amp Hatch, and their names alone appear on the docket in the justice court case, as appears by the transcript of the justice. It is the claim of Graves & Hatch that they were the attorneys employed by C. D. Widman & Co., and that Mr. Millis was not employed by that corporation, and had no interest in the result of that suit; that he was simply acting as their agent in what he did in the justice court, and when judgment was rendered in justice court his connection with the case ended, and he had no professional connection with the case at the time the affidavit for transcript was made. October 21, 1901, the relator applied to the circuit judge for an order striking the transcript from the files. The judge refused to grant the order.

This is an application for a writ of mandamus to compel him to do so for the reason that Mr. Millis was disqualified when the affidavit was sworn to before him by reason of the provisions of section 2640, Comp. Laws, which reads: 'It shall not be lawful for notaries public who are attorneys and counsellors at law or solicitors in chancery to administer...