138 Mich. 184 | Mich. | 1904
Relator commenced a suit in the circuit court for the county of Wayne against Lucy A. An-dress and Anna Morris. When this suit came on for trial before respondent and a jury, it was made to appear that a suit for the same cause of action against defendants, in
Respondent had no right to refuse to proceed with the trial. It was, at the least, his duty to direct a verdict either for or against plaintiff. If, however, it was respondent’s duty to direct a verdict for defendants on the ground that the judgment in the Oakland circuit court was a bar to this suit, relator has no real grievance. It would be an abuse of our discretionary powers to issue a writ of mandamus compelling respondent to try such a case, for it would only result in wasting money in prosecuting fruitless litigation.
It seems, therefore, our obvious duty to determine whether or not respondent should have directed a verdict for defendants. Relator contends that the judgment rendered in the Oakland circuit court does not bar his recovery in this suit, because he introduced no witnesses, and was not present when the case was tried. As the record does not show the circumstances relied upon by relator to lessen the effect of the judgment, it is obvious that his contention cannot prevail, unless it is competent to prove the falsity of the judgment record by evidence not of record.
Tucker v. Rohrback, 13 Mich. 73, Wood v. Faut, 55 Mich. 185, and Hoffman v. Silverthorn, 137 Mich. 60, cited by relator, are all inapplicable.
In Tucker v. Rohrback, supra, this court held that an adjudication that plaintiff and another did not have a claim against defendant was no bar to a suit in which plaintiff alone sought to enforce that claim.
In Hoffman v. Silverthorn, supra, it was held, not that a record could be contradicted by parol evidence, but that, in the absence of affirmative testimony, it would not be presumed that an order denying a mandamus decided ^the merits of a controversy.
The law touching the question under consideration is correctly stated in 1 Greenleaf on Evidence (16th Ed.), § 305g, as follows:
“ This record [the record of a court] is, in legal theory, not a testimonial report by the officer of the proceedings, ■ nor a copy of some other written act; it is the proceeding and the act itself; * * * and consequently it cannot be shown that something was done which is not noted in the record, or that a thing noted in the record was in truth done differently.”
It follows that if there was, as relator claims, error in entering a judgment on the merits, he can obtain relief by, and only by, having the judgment entry corrected j and this relief must be sought in the court that erred, or in a court having appellate jurisdiction.
It may not be out of place to say in this connection— though this circumstance is not material to our decision— that, while relator has asked the Oakland circuit court to set aside said judgment, it does not appear that he has ever applied to have the judgment entry amended.
The mandamus applied for should be denied. But under the circumstances, no costs will be awarded.