Wixom v. Stephens

• Decision Date: 11 January 1869
• Citation: 17 Mich. 518
• Court: Michigan Supreme Court
• Parties: Isaac Wixom et al. v. John Stephens et al

17 Mich. 518

Isaac Wixom et al. v. John Stephens et al

Supreme Court of Michigan

January 11, 1869

Heard January 6, 1869 [Syllabus Material]

Error to Genesee circuit.

This was an action of assumpsit upon a promissory note.

The pleadings and the facts of the case are stated in the opinion.

Judgment affirmed.

Judgment was rendered for plaintiff below

J. L Topping, for plaintiffs in error:

1. The justice, F. LaRue, before whom the suit was originally commenced, had jurisdiction of the case, and the plaintiffs appeared by their attorneys. The note having been given in the firm name of Stephens & Beatty, there was nothing in the process or pleadings in the case to notify the defendant Isaac Wixom, jr., or his attorney, that the suit was not commenced in the true name of the plaintiffs. The plaintiffs are estopped from setting up or proving the mistake.

The note was merged in the judgment as to Isaac Wixom, jr.: 2 Comp. L., § 3782; 4 Mich. 316; 4 Comst. 62.

The note being merged as to Isaac Wixom, jr., no action could be maintained against him severally, except on the judgment, and no action can be maintained against him and Isaac Wixom, on the note, except by the same parties who recovered the first judgment. If the note is not merged as to all the parties by the judgment in justice's court, the negotiability of the note is destroyed thereby.

The judgment became a judgment of the circuit court of Ingham county, after filing transcript and docketing of the same: 2 Comp. L., § 3788.

When a court has jurisdiction its proceedings can not be impeached collaterally; nor when of record can there be any proof in opposition to the record: 1 Doug. Mich., 390; 1 Greenlf. Ev., § 19.

A can not maintain a suit in his own name on a judgment in favor of B, even though it be averred and proved that the judgment was rendered in A's favor by the name of B by mistake: 13 Mich. 40.

2. The taking of evidence by deposition is in contravention of the common law, and the statute must be strictly complied with.

If an adjournment of the time of taking a deposition is made by the person authorized to take the same, reasonable notice thereof must be given to the parties by him in case the parties do not appear: 31 Vt. 529.

It is irregular in taking depositions to adjourn from the place where the adverse party has been served with notice to attend, to another place in the absence of such party: 20 N. H., 379.

Objections may be made at the trial to depositions when notice of filing of the same with the clerk has not been given by the party taking the same: 4 Mich. 554.

The depositions being irregular there is no evidence to support the judgment.

T. G. Smith, for defendants in error:

1. The judgment recovered before F. LaRue, Esq., if void as to the defendants in error, by reason of the misnomer in Stephens's name, could not be relied on as a bar to an action on the note: 13 Mich. 40, 43.

Either the judgment is good, in which case it is a good ground for recovery, or it is void, in which event it leaves the right to recover on the note complete. The two counts of the declaration, that on the judgment and on the note, being distinct and independent, setting up the judgment can not affect the right to recover on the note.

2. Isaac Wixom not having been personally served with the summons in the Ingham county suit, and not having appeared therein, that judgment, even though valid, does not merge the note; but the right to recover on the original cause of action in such cases is well settled: 4 Comst. 514; 9 Mich. 371-379.

3. The objection to receiving the depositions of Longyear and Carpenter in evidence, is purely formal and technical. No objection is made to the bona fides of its execution. Plaintiffs in error do not claim to have been misled or injured by want of notice of the adjournment. The commissioner remained at the place appointed two hours after the time first fixed, where it was their duty to appear, if they desired to attend the examination. But their failure to then appear shows they did not desire to attend: 9 Shepley 357.

The statute neither forbids an adjournment nor requires notice to be given of it, nor is such the practice in proceedings of this nature, nor in any other proceedings, when notice has been first duly given of a hearing.

If the commissioner could not make this adjournment, he could not have adjourned the examination over night, after he had commenced, in order to complete it, without new notice.

The attorney for plaintiffs in error had verbal notice of the filing of such depositions, more than three months before the trial.

OPINION

Cooley Ch. J.:

Stephens & Beatty brought suit in the court below against the Wixoms, upon a promissory note made by them and payable to the order of the plaintiffs. The declaration was upon the common counts, with a copy of this note attached, and...