Parsons v. Dickinson

23 Mich. 56 | Mich. | 1871

Cooley, J.

This case originated in justice’s court. The cause of action was an indorsement by Dickinson of a promissory note made by one Kibbee, payable at the First National bank of Detroit. The defense was that defendant was never legally notified of the dishonor of the note. The justice gave judgment for the plaintiff, which was reversed by the circuit court on certiorari, find the judgment of reversal is now before us for review.

All the evidence in the case was set forth in the return to the certiorari, but it is conceded that the circuit court had no authority to review it for the purpose of determining the correctness of the decision of the justice upon disputed questions of fact, and could only reverse the judgment for errors of law. Several errors were assigned in the affidavit for certiorari, but they may be summed up in two:

First: That the justice erred in receiving evidence, of the custom at the bank as to making inquiries for the residence of indorsers when they were unknown to the officer to whom paper was committed for protest;

Second: That the justice erred in rendering judgment in favor of the plaintiff when there was no evidence in the case tending to show that proper steps had been taken to fix the liability of the defendant as indorser.

To an understanding of the bearing of these objections, it is necessary to state that when the note fell due, the defendant was a resident of Macomb county, and that the only notice given him was one deposited in the postoffiee, directed to him at Detroit. To show that proper diligence was used to ascertain the residence of defendant, the deposition of the notary public who protested the note was taken, and he testified to various inquiries made by him concerning the defendant’s residence, without result. He also testified, under objection, to the custom at the bank where the note was payable as to the diligence which should be used in finding an indorser. At the trial before the justice, this deposition was put in evidence, but it does not appear that objection was there made to the same or to any part thereof as incompetent.

The defendant appears to have supposed that it was sufficient for him to make his objection before the officer who took the deposition. In this he was laboring under an error. That officer had no authority to pass upon such objections, or to rule out for ' incompetency any evidence which the party should insist upon taking. Objections would be taken there-for the purpose of saving the questions when the deposition was offered in court; but all objections not insisted upon then must be considered as waived. No other rule could be just to the party offering the evidence; for if the objection is renewed and the deposition or any part of it is ruled out, he will then have an opportunity to supply such defect in his case as may be thereby caused; and certainly no other conclusion could be just to the justice, for under the opposite rule his judgment might be reversed on a point upon which he neither made any ruling nor was asked to make any. "We are of opinion, therefore, that this error is not well assigned.

Upon the other point, there is, perhaps, more difficulty. It is not claimed-that notice of the dishonor of the note was brought home in due season to the defendant, and the question principally argued before us was whether any diligence was shown in the inquiries made to learn the defendant’s residence. We do not feel called upon, however, to discuss the evidence upon this point, because upon another ground we think there was some showing upon which the judgment of the justice might legally have been based.

Although the defendant was not duly notified, he was under no obligation to insist upon any defense he might have on this ground, but might waive it if he saw fit. The plaintiff testified to having written the defendant two or three letters on the subject of the note after its dishonor, and to a subsequent interview with him, in which defendant stated he had not received the letters, and did not get the notiée of protest of the note; but said he expected to have to pay the note, but wished the plaintiff to try and get it from Kibbee. The defendant was sworn on his behalf, and did not deny this statement.

Now, we think this evidence was not only competent as tending to show a recognition by defendant of his liability on the note, but that its tendency was very strong in that direction. It clearly appears, also, that the statement by Dickinson was made with full knowledge of the facts, so as to negative any presumption that he might not have made it had he been more fully informed of his rights. Under these circumstances we think the circuit court erred in reversing the judgment. The question in that court was, not whether the conclusion of the justice from the evidence was satisfactory, but whether there was any evidence from which his conclusion might be drawn. If the defendant was not satisfied with the judgment of the justice upon the facts, he was entitled to a re-trial upon appeal; but having selected the remedy by certiorari, he must show us wherein the justice erred ,in matter of law. We think he fails to point out any such errors, and that therefore, the judgment of the circuit court must be reversed and that of the justice affirmed. The plaintiff will also recover the costs of this and the circuit court.

The other Justices concurred.