Arnold v. Nye
23 Mich. 286
Mich.
1871
Check Treatment
Cooley, J.

The objection taken to the admission in evidence of the judgment in the federal court against James Arnold, in favor of Clark, has no force. The ground of the objection was, that it did not appear on the face of the record that Arnold was served with process. But this was not essential $ except in the case of inferior tribunals or those not proceeding according to the course of the common law, it is to be presumed that jurisdiction of the parties was duly obtained. In this case, however, it was not necessary to stand upon that presumption, as jurisdiction affirmatively appeared. An attorney of the court assumed to answer for the defendant, and consented in writing that judgment might be entered against him. We must assume, in the absence of any evidence to the contrary, that he was duly authorized, and it is not necessary for us to say in this case, how the judgment would be affected by evidence that in fact the attorney had appeared in the case without authority

*293Nor was it a valid objection to tbe certified transcript, tbat it did not show the execution issued on tbe judgment to bave been under seal. The want of a seal, if one was really wanting, might bave been supplied on motion to amend, and did not render tbe execution void.

Tbe court was clearly in error, we think, in rejecting tbe deposition of Page. Tbe ground of rejection appears to bave been tbat ten full days’ notice of tbe application for tbe order for tbe commission was not given as required by tbe statute. Tbe statute requires notice of application for such order to be served on tbe adverse party “at least ten days before tbe making of such application.” — Comp. L., § Tbe notice in this case was of an application to be made on the 15th day of March, 1860, and was served on tbe fifth day of tbat month. If tbe time is to be reckoned exclusive of tbe day of service, and inclusive of tbat on which tbe application was to be made, tbe time was sufficient. Tbat this is tbe general rule for computing time, is abundantly shown by tbe authorities cited for the plaintiff in error, and we bad occasion to apply the rule at tbe last term, in tbe case of Warren v. Slade [supra, page 1], arising under tbe statute of limitations. ■ Tbe exceptions are of those cases in which, by tbe express terms of a statute or rule, tbe day on which an act is to be done is excluded; as in the case of our statute regarding notices of trial {Comp. L., § in which case, as the general rule would exclude tbe day of service also, there must be tbe requisite number of full days intermediate tbe day of service and tbe day the court is to be held. — Dousman v. O’Malley, 1 Doug. (Mich.), 450. Tbe case of Sallee v. Ireland, 9 Mich., 154, was thought by this court to fall within the exception to this rule; tbe statute in question, in that case requiring a previous service of process of “not less than three” days, which tbe court were of tbe opinion meant three full days, *294exclusive of fractions, and consequently the day of return could not be counted as one. A requirement of “not less than three days” may very well be held to demand three full days; but if we follow the authorities, we must hold that a requirement of a nptice “at least ten days before the making of the application,” means only that notice shall be given as early as the tenth day before the application is made. The computation is made by excluding the first day and including the last, taking no notice of fractions.— Charles v. Stansbury, 3 Johns., 261; Columbia Turnpike v. Haywood, 10 Wend., 424.

The defendants in error make a further objection to the deposition, which, though not passed upon by the circuit court, they insist is sufficient to justify its rejection. This objection is, that notice of the settlement of interrogatories was given by the plaintiff at the same time with the notice of application for a commission, and, of course, before the order for issuing the commission had been granted. The defendants insist that the commission must be ordered before any steps can be taken to settle interrogatories. The statute does not in terms so provide, and we know of no reason for putting such a construction upon it. Commissions are ordered in such cases, almost of course, and although the opposite party could not be required to appear on the settlement of interrogatories before the commission had been granted, yet we see no conclusive objection to the notice of settlement of the interrogatories being given in advance, if the time fixed for the purpose is not earlier than that specified for the application for the commission. As the same officer is to decide upon the application and settle the interrogatories, it seems not improper to give such notices that the one act may immediately follow the other.

Another error assigned relates to the cross-examination of *295an impeaching witness. One- Stowell, it appears, was sworn for the defendants, and a member of the bar was called to impeach him, and testified that he had known Stowell for a number of years, and knew his reputation for truth and veracity in the neighborhood where he resided, and that it was bad. On cross-examination he testified: “I have had. no personal difficulty with Stowell. He was a witness in the Goldsmith divorce case. I had occasion to impeach him. I was counsel in that case.” He was then asked: “Did the judgment of the court in that case sustain the theory of the case to which Mr. Stowell testified ? ” This question was objected to, but allowed, and the witness replied: “The judgment of the court was in accordance., with the theory testified to by Stowell in that case.”

In Stewart v. The People [supra, page 63}, decided at the last term, we had occasion to consider the liberality of inquiry proper to be allowed in the examination of witnesses where an attempt is made to impeach; and we then held that very much ought to be left to the discretion of the circuit judge, whose decision ought not to be set aside because of the latitude of examination permitted, unless there had been a clear abuse of legal discretion. We think that decision applicable in this case. We cannot clearly perceive that the fact that the court in which Stowell was sworn sustained the theory which was supported by his evidence, should have had any influence on the question of his impeachment. It might or might not indicate that the court was satisfied he was not impeached, for there might or might not have been other satisfactory evidence to the -same effect as his. But when the evidence may or may not have been significant, according to circumstances, arbitrary rules of admission and exclusion would be likely to work injustice in some cases, and be embarrassing in all, and consequently should not generally be allowed. In this case *296we think there is no reason for holding that the discretion of the circuit judge was exercised improperly or' unwisely.

The only other error assigned, which we think we have occasion to notice, relates to the action of the court in suffering an amendment to be made in support of one of the judgments under which the defendants justified. The judgment, it appears, was one taken by default on a service of declaration made by the defendant, Osborn, who, when service was made, was a deputy sheriff, but who had ceased to be such when the trial was had. The certificate of service did not show that any copy of rule to plead was served with the declaration; and the court, when objection was taken to the judgment on this ground, allowed Osborn, without any affidavit or other showing, to amend his return in such manner as to show that a copy of rule to plead was indorsed on the copy of the declaration served by him.

Great liberality should always be shown by courts in permitting amendments in furtherance of justice; but when a record is to be corrected under circumstances like these, all due precautions should be observed to have proper evidence that the amendment when made will represent the actual fact. Evidence of the service of a declaration may be made either by affidavit — in which case the criminal law is supposed to furnish due protection against a false oath of service — or by the official return of the sheriff— upon which the party will have his remedy if it prove untrue. There was also no affidavit in this case. Was there any official return of the service of rule to plead upon which there was legal liability? We think not.

Osborn was only deputy sheriff, and while in office acted in the name of, and as deputed by, his principal. He must be presumed to have taken -an oath to perform his official duties faithfully, and may have been required by the sheriff to give bond with sureties, to protect his principal *297against liability for his acts. His oath is supposed to constitute some security to the public and to interested parties that his returns shall be truthfully made, but it is to his principal that they -will chiefly look, as the officer specially chosen for his- capacity and trustworthiness to perform the important duties devolving upon the office. But Osborn, while in office, had made no return, under oath, of the service of this rule to plead; and consequently no liability had been incurred, either by himself to his principal, or by the principal to the defendant in the suit, in respect to any such service. If Osborn can now be allowed to make return in the name of his former principal, that he made due service of the rule to plead while he remained deputy, it becomes pertinent to inquire what one of the sanctions which the law gives to the official returns of an officer there can be in the case. Certainly the amended return will not be made under an official oath, for the person making it is no longer an officer; the former sheriff cannot be liable for its falsity, for the trust which he confided to Osborn has terminated, and he no longer authorizes that person to make use of his official title for any purpose; and if the principal could be liable, he would have no remedy over against any sureties he may have required of Osborn, for such sureties would only undertake for Osborn’s official acts, and not for what he might assume to do after his official functions had terminated, and when, perhaps, as well his former principal as the, sureties may have ceased to be willing to assume responsibilities on his behalf.

In every view we can take of this amendment, we think the court erred in permitting it to be made. The service having been by one no longer in office, a showing by affidavit should have been required, instead of an amendment to the official return.

We do not understand the objection, which was taken *298to the order of the court, permitting an amendment of the judgment by striking out the name of Wright, to be now insisted upon, but if it is, we think it untenable.

The judgment of the circuit court should be reversed, with costs, and a new trial ordered.

Christianoy, J., and Campbell, Ch. J., concurred. Grates, J., did not sit in this case.