29 Mich. 487 | Mich. | 1874
Though it is true in a qualified sense that the payment’ of one dollar to the justice for making his return to an appeal under the justice’s act, is not necessarily a jurisdictional fact, because the justice may waive its payment, and may make his return without it, in which case it will, under section 201/. {Comp. L., § 51/52), be conclusively presumed to have been paid; yet, on the other hand, the payment within five days after the rendition of the judgment, of this one dollar to the justice for making his return, as well as the costs of the opposite party included in the judgment, is, by the 188th section {Comp. L., § 51/36), made a condition precedent to the right of the appellant to maintain his appeal; and if the payment be not made within the five days, then, unless waived by tbe justice, or (which, for the purposes of this case, is the same thing), unless he choose to make his return voluntarily, no duty is imposed upon him to make a return, and no court
The circuit judge, while admitting that the justice could not be compelled to make return of the appeal unless .his fee for the return had been paid, or its payment waived, held that the justice had waived its payment within the five days, upon which he would otherwise have had the right to insist, and had no right afterwards to insist upon it as condition precedent to the making of the return.
If any facts are stated in the return of the justice, in answer to the affidavits upon which he was ordered to show cause why he should not make his return, which have any tendency whatever to establish the conclusion that he did waive the payment of his fee, within the five days, or consent that it might be paid afterwards, then, I think, it is very clear that the decision of the circuit judge cannot be reversed in this proceeding for a mandamus, nor upon cer
But if no fact is stated in the justice’s answers or returns in the proceedings to show cause, having any tendency to support the conclusion of waiver of payment, then I think a mandamus should issue to compel the circuit judge to vacate the order for a return, and to dismiss the appeal, unless the right to insist upon the failure to pay, or the non-payment of the fee, is a matter so exclusively between the justice and the appellant, that the relator is not entitled to take any benefit from the objection under all the circumstances of the case, or unless the relator has some other legal remedy for the erroneous action of the court.
If an execution had not been issued and satisfied, there might, perhaps, be more plausible ground for saying the objection, for want of payment of the fee, was one in which the justice alone was interested, and that the relator, the plaintiff in the judgment, had no right to raise it. But, even then, this view, on examination, will be found to be unsound, and to lack plausibility, when the payment was not made, and the justice, for this reason, has neglected or refused to make his return on that ground; since, in such case it is perfectly clear, and is admitted by the counsel for the respondent, and was admitted by the circuit judge, that the
But it is not enough that the relator has an interest, nor that he has a clear legal right, which has been as clearly violated; if he has any other adequate legal remedy, he is not entitled to invoke the sovereignty of the state in his behalf, to secure the protection of his rights by the extraordinary writ of mandamus, issued on behalf of the people of the state, for the purpose of securing the due execution of the law in his behalf; but he must rely upon the ordinary legal remedy which the law has given him, as an individual. If he has any such legal remedy in this case, .it must be either by writ of error or a common-law certiorari.
That a writ of error would not afford him redress for the wrong complained of, or protect the right alleged to be violated in the present case, is too clear to admit of a doubt. This remedy corrects only the errors apparent upon the
The record in the present case would consist of the record of the suit before the justice (this being only a general appeal), as sent up by the return of the justice to the appeal, and would not include the affidavits, or orders of the circuit court based upon them, for compelling a return, nor the returns or answers of the justice in showing cause against being compelled to make return to the appeal; and the error complained of would not appear — Pearsons v. Eaton, 18 Mich., 79; Conrad v. Freeland, 18 Mich., 255.
Whether a certiorari would lie to correct such an error may not be quite so clear; but if it would, it could only be brought after the trial of the case upon appeal, and a final judgment in the case (Palms v. Campan,, 11 Mich., 109); and the certiorari would then be to remove the cause itself for review, and not this collateral proceeding, unless it forms part of the record in the case.
It was held in People v. Judges of Branch Circuit, 1 Doug. (Mich.), 319, that the proceeding commencing a suit by attachment, not being a proceeding according to the course of the common law, a common-law certiorari would lie to correct an error of the circuit court in allowing a new affidavit (required as the ground upon which the writ •was to issue) to be filed - in the place of a defective one; that the affidavit, being the very ground upon which alone the writ could issue, would go upon the record, as well as the new one permitted to be filed, and therefore the certiorari would remove them to the supreme court; but it was added (in strict accordance with the common-law’authorities), that it would not bring up the various affidavits on which the motion (to allow the filing of the new affidavit) was made and resisted. Allowing the proceeding of the appeal to be a special proceeding, not according to the •course of the common law (though the case before the justice, as well as in the circuit, was in other respects a common-law proceeding), then the affidavit for appeal, filed with
The result, in my view, is, that the relator has no legal remedy for the wrong complained of, without resorting to the writ of mandamus.
It therefore becomes necessary to examine the returns or answers of the. justice in the proceeding to show cause why he should not make his return to the appeal, and to see if any facts are stated by him tending to show that he had waived the payment of his fee within the five days, or had consented, either that it should not be paid at all, or that it might be paid after the five days.
In his first answer he says, that on the 28th of April, 1870, when Foster filed his bond and affidavit for appeal, and paid the costs taxed on the judgment, he informed Foster he would have to pay one dollar more for his fees for making the return to the appeal, which Foster did not do, and has never paid it, and that he never tendered it within the five days. In answer to a further order for a further answer, based upon other affidavits, he says, as before, the defendant paid the costs taxed in the judgment, and then adds : “ I did then and there demand of him the further payment of one dollar for my fees for making said return; ' * * at the same time I informed him that the said return would not be made unless the fee of one dollar
I see nothing in all this, when construed with reference to the affidavits, which can be tortured into an admission of a waiver of payment, or which tends in the remotest possible degree to prove that such waiver had taken place. It is simply a direct and positive denial of any such waiver. There was, therefore, upon these answers, no such question before the judge for decision; nothing upon which he could act judicially in determining that such waiver had taken place. His action, in ordering the return to the appeal, was, in my opinion, just as clearly without authority, as if he had made the same order without any affidavit, or application for the order, and without calling upon the justice to show cause. It was not judicial action in any proper sense. The order was a clear violation of the legal right of the relator, and he has no other legal remedy. For these reasons I think the mandamus should issue as prayed.
I know it has been often said (and in most cases correctly, when applied to the particular facts of the case, under consideration), that, though a superior may command an inferior court by mandamus, to go forward and try or dispose of a case or question before it, it cannot compel the lower court to undo what it has done; that affirmative action may be enforced, but not negative action; that a court may be compelled to go forward, but not to retrace a step it has already taken. But affirmative action by way of further proceedings in one direction, often involves the retracing of steps already taken, and the undoing of what has already been done in another direction, and the overruling or setting aside of previous determinations, or orders
But if the case before the lower court does not, upon its facts or the evidence, legitimately raise the question of law or fact it has assumed to decide, so that the court could act judicially upon it, or so as to give the court the power judicially to make the decision it has assumed to make, then its action is not properly judicial, and no assumed determination of it, nor any order resting upon it, will preclude the remedy by mandamus, provided the case be in other respects a proper one for that species of remedy.