Knapp v. Gamsby

| Mich. | Jan 11, 1882

Campbell, J.

Gamsby obtained judgment of restitution on a complaint of forcible entry against Knapp and Thorpe. The case was tried by a jury before Donald McPherson, a circuit court commissioner for Ionia county, and removed to the circuit court by certiorari where the judgment was affirmed, and error is brought for the affirmance.

The objections urged on the certiorari were — First, the wrongful extension of time to put in security for costs; second, the rejection of testimony; and third, unauthorized communications with the jury.

The first objection does not go to the merits and is of no force.

The second objection appears in the affidavit for certiormd in these words: “ That said commissioner erroneously rejected the testimony, both documentary and oral, offered by the defendants.” In the affidavit it is stated that the defendants offered among other things to show a series of facts occupying in the recital about half a printed page of propositions, to all of which, upon objection from said complainant’s attorney, the said commissioner refused to allow said defendants to prove, to each of which said rulings said defendants, by their counsel, excepted.

Hpon an inspection of the return it appears that this was not presented or ruled upon as one offer, and that it does not jmesent the questions and facts just as passed upon by the commissioner, and rather summarizes results and conclusions, instead of narrating the transactions as occurring on the trial and as excepted to. An affidavit for certiorari, asking a review of rulings on the trial — if they can be reviewed at all — should conform substantially to the requisites of statements in a bill of exceptions, and present the rulings as they actually occurred. If this had appeared, the short form of complaining of the rulings in the assignment of errors, would perhaps be proper. But to make a recital of facts as a single proposition or connected chain of propositions, when in truth they were never presented together at all, and were detached rulings during a long trial, is objectionable — not only as incorrect in form, but as separating each ruling from its own circumstances and belongings. The affidavit fails entirely to present the main ground on which the commissioner based most of these rulings, while some of them, at least, may perhaps have stood on independent grounds. ¥e think the return and the affidavit do not agree, and that the allegation of error is not .supported as alleged.

The objection concerning the jury is not sound. It appears that the commissioner at the request of the jury for instructions as to their verdict after they had once retired merely told them it should be in form either Guilty or Not Guilty. It does not appear, moreover, that the defendants were absent at the time, and the commissioner does not know whether their counsel was in the room or not. There is no error apparent.

"We have dealt with this case as if the questions presented were proper for a eertiorwi. If the two principal causes of complaint were made out, it would not show that Gamsby had no rights, but would merely show that Knapp and Thorpe had a right to a new trial on the merits. Under our practice, a reversal on certiorari does not secure a new trial but ends the proceeding. The statute has made provision for an appeal to the circuit, and on that appeal they could have had a new trial as a matter of right, and would thus have secured the only remedy that justice required. The statute regulating certiorari in these cases is the same applicable to justices’ judgments, and we are disposed to withhold our opinion as to the aiiplicability of the remedy to cases where the appellate court has no means of knowing whether if the errors complained of had not occurred the judgment would have been different.

The judgment must be affirmed with costs.

The other Justices concurred.