82 Mich. 160 | Mich. | 1890
Petitioner, James S. Berkery, asks for a mandamus based upon the following facts;
On January 29, 1884, “ Thomas Bortz, for James B. Bortz,*’ sued Berkery before Charles H Borgman, one of the justices of the peace of Wayne county, in a plea of assumpsit, and recovered judgment on February 19, 1884,
May 19, 1890, Berkery, by his attorney, made a motion in the Wayne circuit court before Hon. C. J. Reilly to set aside the said judgment, based upon the filing of the transcript, for the following reasons:
“1. There is no affidavit of amount due, as required by the statute.
The affidavit filed therein is not properly sworn to, or authenticated, as required by statute, being sworn to in the state of Ohio before a notary public of that state, and there is no certificate attached to said affidavit by the clerk of any court of record under the seal of said court showing that the signature of the notary was genuine, or that he was authorized by the laws of his state to administer oaths.
“ 3. The transcript shows that the original judgment before the justice was entered in the case of f Thomas Bortz, for James B. Bortz, against James S. Berkery,’ whereas the affidavit is entitled in a case of James B. Bortk against said James S. Berkery, judgment on Justice Borgmaffis docket.
“ 4. The affidavit as filed was sworn to before Thomas J. Corkery, who appears on the record in said circuit court as the attorney for said plaintiff.
“5. The affidavit filed with the justice for the tran*163 script of judgment is sworn to on the 18th day of January, 1890, while the transcript was not filed in this court until the 29th day of January, 1890, and cannot therefore be treated as an affidavit of amount due, as required by the statute.
“6. The affidavit filed does not identify the judgment, the transcript of which was filed in this case, so that it cannot be treated as an affidavit in such ease.”
This motion was argued before the circuit judge, and on May 26, 1890, he disposed of the motion by the following order:
“The motion heretofore made in said cause for an order setting aside the judgment therein came on to be heard, and after hearing Geo. W. Bates, defendant's attorney, in support thereof, and Thomas J. Oorkery, plaintiff's attorney, in opposition thereto, it is ordered that said plaintiff have ten days from date to file new affidavits of amount due on said judgment, and for transcript thereof, in substitution for those now on file therein, nunc pro tunc, and that unless such affidavits are filed in said time said judgment be set aside.”
Affidavits were filed under this order on June 4, 1890. Belator insists that such order allowing new affidavits to be filed was irregular and void for the following reasons:
“ 1. That there was no sufficient affidavit filed with the justice for such transcript, in this, that the affidavit filed was not made by any authorized person, it not being made either by the plaintiff, his assignee, or the attorney of either party.” Act No. 173, Laws of 1885, amendatory of How. Stat. § 6947.
The other reasons stated are substantially the same as those above quoted in support of the motion.
If these affidavits were insufficient to confer jurisdiction, the one upon the justice to certify his transcript, and the other upon the clerk to file the transcript and -enter judgment, then jurisdiction could not be conferred by substituting sufficient affidavits nunc pro tunc. The question must be determined upon the validity of the affidavits filed with the transcript.
The plaintiff’s name only appears in the title of the-cause, above, or in the caption of, the affidavit, and it then appears as “ Thomas Bortz, for James B. Bortz, vs. James B. Berkery.” In a cause so entitled the next, question is, who is the plaintiff in the suit? It cannot, be disputed that Thomas Bortz is the nominal plaintiff. The words “for James B. Bortz” are surplusage, and are indicative merely that the suit is prosecuted for his use and benefit. He may be the real party in interest, but-he is not the real party to the record. And the law refers to parties to the record. If James B. Bortz had been the real party in interest, and as such was the absolute owner of the judgment recovered, he would 'have been authorized to make the affidavit as to the amount due, as the agent of the plaintiff to the record. The judgment before Justice Borgman was rendered in favor-
A series of blunders appear in the affidavits and transcript. In the title of the cause, in the affidavit of Corkery, the defendant is called “ James B. Berkery.” In the transcript he is called “James S. Berkery.” In the title of the cause in the same affidavit the plaintiff is styled “ Thomas Bortz, for James B. Bortz,” and also in the caption of the-transcript; but in the docket entries, Book No. 4, Docket No. 2743, p. 94, the cause is entitled “ Thomas Bortz, for James 8. Bortz, against James S. Berhery,” etc., and, if the middle initial letter in a name were of any consequence, it would raise serious questions .as to the identity of the parties. We hold, however, that the affidavit made by Corkery is good and sufficient.
This affidavit states the amount due and unpaid upon the judgment, exclusive of costs, to be $251.29. It does not state whether there were any costs. This affidavit, under the authority of Smith v. Judge, 46 Mich. 338 (9 N. W. Rep. 440), would have been sufficient authority to the clerk to enter judgment for this amount had it been timely filed, but nothing could have been entered for costs. The presumption would have been that they had been paid or waived. But it was not timely filed, and nothing can be claimed for it as showing the amount due. The affidavit was sworn to on January 18, 1890, and the transcript with the affidavit was not filed until January 29, 1890, a period of 11 days. In Bigelow v. Booth, 39 Mich. 622, eight days elapsed between the making of the affidavit for the transcript and the filing thereof, and the Court held that in such case there “ was ample time in which the judgment might have been paid,
There is what purports to be an affidavit of James B. Bortz, and, as it is short, it is inserted here:
“Jambs B. Bortz v. “James S. Berkery.
Judgment on the justice doclcef of Justice Borgman.
“The State of-Ohio, ) _ Lucas county. )
“James B. Bortz, being duly sworn, says he is a resident of Lucas county, Ohio; that there is now due him on said judgment the sum of $251.29 damages, and $4.50 costs, with interest on each of said sums, at six per cent, interest, from Feb'y 19, 1884, from said defendant, James S. Berkery, to him, the plaintiff, James B. Bortz.
“Jas. B. Bortz.
“ Sworn to and subscribed before me this 28th January,. 1890.
[Seal.] “Thomas J. Oorkery,
“Notary Public, Lucas County, Ohio.”
This affidavit is not entitled in the cause, but is entitled in another cause upon Justice Borgman's docket.
By compliance with the requirements of the law, and filing the transcript, it becomes the duty of the clerk to enter and docket the judgment, and it then becomes a judgment of the circuit court. It was said in Jewett v. Bennett, 3 Mich. 200:
“Under such entirely ex parte proceedings, to be followed by such unusual consequences, justice and- the protection of the-parties, as well as law, require a strict compliance with the provisions of the statute before they can be made available to remove the judgment, convert it into a judgment of the circuit court, and throw about*167 it the sanctions, and attach to it the remedies, of a court of general jurisdiction.
This principle has been enunciated and followed repeatedly from 1854 to the present time. O’Brien v. O’Brien, 42 Mich. 15 (3 N. W. Rep. 233); Doty v. Dexter, 61 Id. 348 (28 N. W. Rep. 123); Wedel v. Green, 70 Id. 642 (38 N. W. Rep. 638); Peck v. Cavell, 16 Id. 9.
A more serious objection to the affidavit of James B, Bortz is that it does not appear to have been sworn to before any officer authorized to administer oaths. It purports to have been sworn to before “ Thomas J. Corkery, Notary Public, Lucas county, Ohio,” and he has attached a notarial seal. But in this State a notarial seal is not-recognized as evidence of the authority of a notary to administer an oath. The authority of notaries to administer oaths is usually conferred by statute, and does not pertain to their office by usage or custom. Keefer v. Mason, 36 Ill. 406; Proff. Not. § 21. The affidavit of' Bortz of the amount due was to b.e used in a judicial proceeding in this State. To entitle it to be used it was. necessary that it should have been certified under How.. Stat. § 7448 (subd. 3).
Attention is called to the language of this section, that “to entitle the same [affidavit] to be read it must be authenticated,” etc., and it is claimed that, as the' affidavit required by section 6948 is only to be filed by the clerk, this statute does not apply. This would be a too narrow construction to put upon the language of the statute. The clerk must read the affidavit to know whether it complies with the statute, and so to determine whether he should file it, and enter judgment upon it. This affidavit is jurisdictional, and the foundation of a judgment in the circuit court; and it would indeed be a strange construction to give this statute that no affidavit.
The counsel for respondent cites the case of Pinkham v. Cockell, 77 Mich. 265, as an authority for holding that there is a presumption that the party before whom the oath was taken was a proper officer, in the absence of proof to the contrary. It is proper to state that a mistake crept into the opinion in that case. The record showed that the authority of the notary wat properly certified, and the opinion was corrected by Judge Campbell in one part, and by oversight left in another part as originally written.
We think the mandamus must issue as prayed, and it is so ordered.
The fact of such certification is stated in the report of the case in 77 Mich. 265 (head-note 2).