56 Mich. 564 | Mich. | 1885
Plaintiff sued defendant in justice’s court ■on a promissory note. The evidence given by him on the trial was that the note was given in renewal of a prior note, which prior note was for a balance due on a piano purchase. The defendant relied upon set-offs ; but these set-offs, as they were testified to by him, consisted of payments on the same purchase, made before the giving of the first note. According to the justice’s return, he was asked on cross-examination whether all these payments were not allowed him when the first note was given, and he replied that they were talked ■over. The further question was then put: “You knew of all the claims you now make before you gave the first note?” and he answered, “Yes.” To the further question whether the note was not given for the balance found due on the piano purchase he made no answer. The plaintiff then moved to strike out the defendant’s evidence as immaterial, and the motion was granted.
This action of the justice is assigned for error. Had he been trying the case with a jury, it would have been erroneous,' because it would have taken ■ the evidence entirely away from the jury; but he was sitting alone, and the evidence was addressed only to him. When he struck it out as immaterial, he merely decided in effect that it had no important bearing in the case, and ought therefore to be disregarded ; and if he returns the facts truly, we cannot say he erred. Presumptively, the note was given for the actual balance due, and defendant did not state facts in his evidence which would overcome this presumption.
The defendant, however, claimed in the circuit court that
The return as actually made by the justice shows no ground of error on which, in our opinion, we should be warranted in reversing his judgment. If it is reversed, therefore, it must be either because the circuit court refused to require a further return, or upon the grounds alleged or suggested in the last assignment of error.
Certiorari, in cases which stand upon facts, is a remedy not favorable to justice, because it may set aside a righteous judgment upon errors more technical than substantial. For this reason intendments should be against error on doubtful facts; not in favor of it. The remedy more conducive to justice manifestly is an appeal. We have explained this in other cases to which we now refer. Ritter v. Daniels 47 Mich. 617; Howell v. Shepard 48 Mich. 472; Erie Preserving Co. v. Witherspoon 49 Mich. 377; Whitbeck v. Common Council 50 Mich. 86; Wilkinson v. Williams 51 Mich. 155.
The judgment should be affirmed.