Berkery v. Reilly

Champuin, O. J.

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, for $251.29 damages, and costs of suit, taxed at $4.50. On January 18, 1890, Thomas J. Corkery, as attorney for the plaintiff, made and filed an affidavit with Joseph C. Gibson, one of the justices of the peace of Wayne county, and who had control of tbe docket and judgment record of said judgment. On the same day Justice Gibson made аnd delivered to Corkery a transcript of the judgment, and annexed his certificate thereto. On January 28, 1890, James B. Bortz made an affidavit of the amount due upon the judgment, and on January 29 the transcript, the affidavit for the same, and the affidavit of the amount due were filed with the clerk of the circuit court for the county of Wayne, who thereupon entered the same in the docket kept by him in which are recorded transcripts of judgments from justices of the рeace for said county.

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 оf 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 certificаte 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 transcriрt 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 transcript 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 sеtting 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 Junе 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 thе 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.

Parties may appear in justices’ courts and prosecute or defend either in person or by attorney. Such courts being of special and limited jurisdiction, the authority of the attorney extends no further than the proceedings before the justice. An attorney may act for a party in any judicial proceeding in which he may be employed: and, when a party is entitled to appeal or obtain a transcript from a justice of the peace by filing an affidavit made by himself or his attorney, it is not necessary that the affidavit shall be made by the attorney who appeared in thе suit as such, but it may be made by any attorney thereunto duly authorized by the party, and his authority may be proved by the affidavit of the attorney deposed to in the affidavit. In this case, the affidavit for the transcript was made by Thomas J. Corkery, who states in the affidavit that he is the duly-authorized attorney of. the plaintiff. The affidavit was a sufficient compliance with the statute authorizing it to be made by the attorney of the plaintiff.

The plaintiff’s name only appears in thе 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 “fоr 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-■of Thomas Bortz, and he was the party authorized by the statute to apply for the transcript, by himself or through his attorney. The affidavit of Corkery must refer tо him when he says that he is the duly-authorized attorney of the above-named plaintiff.

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. Berkеry.” 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 Nо. 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 transcriрt and the filing thereof, and the Court held that in such case there “ was ample time in which the judgment might have been paid, in whole or in part,” and that “it does not necessarily follow that the amount sworn to as due on the 4th of April remainеd due and unpaid on the 12th of the same month.” The transcript could not therefore be filed without another affidavit of the party plaintiff, or the agent or attorney of the plaintiff, stating the amount due upon such judgment.

There is what рurports 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 pеr 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 cоmpliance 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 thе judgment, convert it into a judgment of the circuit court, and throw about it the sanctions, and attach to it the remedies, of a court of general jurisdiction.

This principle has been enunciated and followed repeatedly frоm 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 proceеding 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., аnd 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 whеther 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. taken in another state to be used in a judicial proceeding could be read unless authenticated as required' by this section, and yet an affidavit which is to give the court jurisdiction may be filed or used without authentication, and without any certificate of the authority of the officer to administer oaths, or of the genuineness of his signature. The affidavit without such authentication was a nullity, and gave no jurisdiction to the clerk to file the transcript, or еnter and docket the judgment.

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.¹

We think the mandamus must issue as prayed, and it is so ordered.

The other Justices concurred.

Notes

1 The fact of such certification is stated ‍​​‌​‌‌‌‌​​​‌​‌​‌​​​‌​‌‌​​‌‌‌​​​‌‌‌‌‌​‌‌​​‌‌‌​​‌​‍in the report of the case in 77 Mich. 265 (head-note 2).

Case Details

Case Name: Berkery v. Reilly

Court Name: Michigan Supreme Court

Date Published: Aug 1, 1890

Citation: 46 N.W. 436

Court Abbreviation: Mich.