Charles H. Werner & Sons Co. v. Lewis

155 Mich. 450 | Mich. | 1909

Grant, J.

Plaintiff brought suit in assumpsit in justice’s court against the defendant. Summons was returned personally served. Defendant did not appear. Plaintiff filed a, declaration upon the common counts in assumpsit, and “especially upon a certain promissory note given by the above-named defendant to the above-named plaintiff, under date of November 26, 1895, for $45.89, due in six months, at 7 per cent, interest, and files the note with the court.” After waiting one hour the court rendered judgment for the plaintiff for the amount of the note. This suit is brought upon that judgment.

Defendant objected to the admission of the judgment, because the justice’s docket does not show that evidence was given; that no witnesses were sworn, as required by subdivision 8, § 957, 1 Comp. Laws, which requires the justice to enter upon his docket, among other things, “the names of the witnesses sworn at the request of either party, stating at whose request, the objections, if any, made to the competency of a witness, and the decision thereon.” No evidence was required, further than the production and presentation of the note, under section 826, 1 Comp. Laws, which provides that any written instrument declared upon may be used in evidence upon the trial without proving its execution, unless its execution is denied upon oath at the time of pleading. There was no necessity for the swearing of any witnesses. The case is ruled against the defendant by O’Donnell v. Wade, 151 Mich. 103.

The judgment is affirmed.

Blair, C. J., and Montgomery, Hooker, and Moore, JJ., concurred.