McGraw v. Schwab

23 Mich. 13 | Mich. | 1871

Christianot, J.

Defendants in error brought a suit in a justice’s court against the plaintiff in error for certain liquors alleged to have been bargained and sold to plaintiff' in error at Chicago.

The defendant below (plaintiff in error) pleaded the general issue, and gave notice, in substance, that he would prove that the liquors were sold and delivered in the state of Michigan, and that such sale was void under the statute (known as the “liquor law”).

The case was tried before a jury, who found a verdict for the defendant (below) upon which the justice rendered judgment of no cause of action. The cause was removed to the circuit court for Wayne county, by a writ of certiorari.

From the affidavit upon which the writ was issued and the return of the justice, no objection appears to have been taken to any of the evidence introduced on the trial, all of which purports to be given in this return; nor was any objection made to any process, pleading or proceeding before the justice; nor does it appear that any question of law was raised on the trial, though we may infer from the nature of the evidence, and especially from the arguments before us, that the main question probably discussed on the trial was, whether the sale was made within or without the state; and that there was also some question as to the value of the liquors, — the testimony being such as to warrant the jury in the finding of the verdict which was found in the case, whether they might have found the other way or not, according to the weight or credibility of the testimony.

The only error complained of in the affidavit is “that the judgment is erroneous, for the reason that the testimony given on the trial demanded that a verdict for damages should have been given in favor of the plaintiffs and against the defendant.”

From this statement of the case, it is evident, 1st. That no question of law was presented to the circuit court, either by the affidavit for the writ or the return of the justice.

2d. That questions of fact only were presented upon the weight of the evidence, or the general merits of the case upon the whole evidence, which had already been determined by the jury; and,

3d. From the nature of the proceeding, by certiorari, as provided by the statute (Comp. L., §§ 8868 to 888Jj), it is equally evident that questions of law only (so far as relates to the action itself) can be tried in this proceeding; the same chapter (Comp. L., §§ 8885 to 8867) having provided another remedy — a re-trial upon appeal — for trying the general merits of the cause upon the weight of evidence;. and that the affidavit on which the certiorari issued, though sufficient for a general appeal, furnished no proper basis for the writ of certiorari.

It is, therefore, quite manifest that, under the affidavit and the return, the circuit court had no jurisdiction to review the cause, either upon the facts or the law, and therefore no power to alter the judgment of the justice; and that he should either have affirmed the judgment or dismissed the proceeding with costs.

But, inadvertently, as we must suppose, he not only proceeded to reverse the judgment of the justice, but to render a judgment for the plaintiffs for the amount which, in his opinion, they ought, upon the evidence, to have recovered; and this in direct opposition to the verdict given by the jury upon tbe evidence, to which no objection had been taken, and of which they were the exclusive judges.

This was clearly erroneous, and the defendant below having removed tbe cause to this court by writ of error, the judgment of the circuit court must be reversed and that of the justice affirmed; and the plaintiff in error must recover his costs in this and the circuit court.

The other Justices concurred.