52 Mich. 460 | Mich. | 1884
This case was brought into this Court by writ of error to the circuit court for the county of Wayne. The suit was originally commenced in justice’s court, and was brought from thence to the circuit by writ of certiorari.
■ The return of the justice shows that the case was tried before a jury, and after the testimony was closed the jury retired to consider their verdict under the charge of an officer duly sworn ; and after they had been out a few moments the justice, at the request of the jury, entered the jury-room in the absence of the parties, and was asked by the jury the following question: “ Can we reduce the amount of the note?” To which he made answer: “No; you will have to allow in full the amount due on the note when plaintiff purchased it, if before maturity, or disallow it.”
The jury, after further deliberation, returned a verdict for the plaintiff for thirty-five dollars, and the justice rendered a judgment for that amount.
The only allegation of error set out in the affidavit for the writ of certiorari is that the justice erred in entering the jury-room after the jury were in charge of an officer, without the consent of the defendant, and advising with them during their deliberations, upon the law and evidence in the case. For this error assigned the circuit judge reversed the judgment of the justice, and this reversal is assigned as error here.
It was highly improper for the justice to enter the jury-room, whether requested to do so by the jury or not, alone, without consent of the parties or attorneys, after the jury had retired to deliberate. But whether it was such an error as calls for a reversal of the. judgment upon certiorari is quite another question.
We have here, from the justice’s return, a statement of all that occurred, and in passing upon this question we must take his return as true. We cannot say that it was an error that prejudiced the rights of the defendant. Hant v. Lindley 50 Mich. 20; Thayer v. Van Vleet 5 Johns. 111; Blackley v. Sheldon 7 Johns. 32; Henlow v. Leonard 7 Johns. 200; Whitney v. Crim 1 Hill 61.
If the. defendant was dissatisfied with the verdict and judgment, as being against his substantial rights, a more appropriate remedy would have been an appeal to the circuit court, where the case could have been tried and determined upon its merits. This Court has heretofore expressed its disapprobation of the practice of taking advantage of technical errors in the proceedings before justices of the-
The judgment of the circuit court is reversed and that of the justice affirmed with costs of this Court and of the circuit.