142 Mich. 518 | Mich. | 1905
The bill in this case is filed to vacate a judgment recovered against Richard D. Gregory in his lifetime upon a promissory note executed by said Gregory and his brother, Enoch, April 19, 1892, due one year after date. -The note was made entirely for the benefit of Enoch, who received and used the money borrowed. On April 19,1894, Enoch paid the interest to date, which was indorsed upon the note. On January 26, 1898, the probate court for Kalamazoo county duly adjudged Richard
It was conceded upon the argument that equity has jurisdiction of a suit of this character, and that the sole question for our determination was whether such injustice had been done as to authorize a court of equity to set aside the judgment of the court of law.
“ It is well understood that before a chancery court will interfere with a judgment at law it must be made very clearly to appear that an injustice has been done.” Mueller v. Marsh, 116 Mich. 375.
See, also, Finn v. Adams, 138 Mich. 258. The only
“ Q. Now, there is an indorsement on the back of $40 ?
“A. Yes; that is the interest for two years. It seems to be dated as paid at the end of just two years.
“ Q. Were you present when that interest money was paid ?
“A. I must have been, as that indorsement on the back is in my handwriting. I think they both came to the bank. I think Enoch paid the money. That is my impression, that they both came down. It is the best of my recollection that Richard was with him.”
The most that can be claimed for this testimony is that it shows that Richard was present when Enoch paid the money. The mere presence of Richard when the interest was paid was not sufficient to keep the demand alive as against him. Mainzinger v. Mohr, 41 Mich. 685; Home Life-Ins. Co. v. Elwell, 111 Mich. 689; Borden v. Fletcher’s Estate, 131 Mich. 220.
As we are satisfied that a trial of the suit at law must result in a judgment in favor of complainants in this suit, a decree will be entered vacating the judgment in that suit as to Richard D. Gregory, and avoiding all proceed