Peck v. Cavell

| Mich. | Jul 11, 1867

Cooley J.

The plaintiff having shown a prima facie right in himself to the recovery of the premises in question, the defendant sought to defeat that right by showing sales on two executions, against the plaintiff, issued on transcripts of justices’ judgments which had been filed in the Circuit Court. A portion of the premises was sold on each of the executions.

The statute only authorizes a transcript to be filed in the Circuit Court after execution has been issued by the Justice and returned unsatisfied; and it is objected that it does not appear from tbe transcripts that any execution was ever properly issued in these cases, inasmuch as the evidence does not show that the executions were issued at the request of the plaintiffs in the - judgment. The transcripts only state when and1 to what officer the executions were issued; but as these are the 'only-facts which the statute requires to be entered on the docket in relation thereto (Comp. L. § 3890, clause 12), and as the transcript is to be a correct copy from the docket (Comp. L. § 3786), we think the objection not tenable. If the Justice enters upon the docket in regard to his own proceedings all that the statute requires, the ordinary presumption in favor of the correctness of official action must support the proceedings. • .

It is also objected -that the executions issued by the justice were returned prematurely. Both appear to have been returned on the sixtieth day after date; and the plaintiff claims that he was entitled to the whole of the sixtieth day in which to make payment. The sixtieth day, however, was the return day; and although the statute allows the officer to make the return at any time within five days thereafter, without subjecting himself to liability (Oomp. L. § 3827), he may also make return on the return day; and a strict obedience to his process would require him to do so. One of the executions, however, was returned on Sunday; and that fact is fatal to the proceedings on the transcript based upon it.

But there is another fatal objection to both of the transcripts, and to all proceedings under them. It does not appear that either of the transcripts were certified by the Justice, or that any such affidavit was attached thereto as was required by the statute. A special statutory proceeding of this description which is to divest a man of his title in invitum must be in strict compliance with the statute in all those particulars designed for the protection of the defendant. The certificate to the transcript and the affidavit of amount due are jurisdictional facts, without which there is no authority to file a transcript. The original transcripts were not offered in evidence in this case, but only the docket entry thereof in the office of the clerk of the Circuit Court; and this entry did not show either a certificate or an affidavit. Without inquiring whether this would have been a sufficient docketing of the judgments had the transcripts been? in due form, it is clear that it can constitute no authority for an execution unless it appears that there was .a transcript duly certified, and an affidavit of the amount due, without which there is no authority for docketing the judgment in the Circuit Court at all. As objection was taken at the time that the transcripts themselves were the proper evidence, the attention of the defendant ivas called to the defect, so that he had an opportunity to put the transcripts in evidence if they were in compliance with the statute. As they were not offered, we can presume nothing in their favor.

The judgment must be reversed, with costs, and a new trial ordered.

Christianoy and Campbell JJ. concurred. Martin Ch. J. did not sit.