68 Mich. 242 | Mich. | 1888
The above-named -plaintiff, in 1879, commenced two suits against the above-named defendants before Justice DeGraff in the county of Eaton. The claim of the plaintiff in each case was upon a promissory note made by the defendants.
No defense was made in either case before the justice, and on the thirty-first day of March, 1879, judgment was rendered by the justice, — in one case for $800 damages, 'and $8.63 costs, and in the other for $285.37 damages, and $5.73 costs,
It appears from the record that the defendant Sloan refused to make defense to the claim of plaintiff in either suit, but was at the time the same were commenced, and ever since has continued to be, insolvent, and inimical towards Hunt and friendly to the plaintiff and his claims, and that in consequence of these circumstances Hunt was obliged to make his appeals to the circuit alone, and give the necessary bonds for that purp.ose, and was himself, both before the justice and in the circuit, obliged to look after the cases, make the defenses therein, and be to all the trouble, labor, and expense of the same.
The defendant Hunt employed attorneys after the causes were appealed, and, upon the consent of the parties, the two causes were consolidated and tried as one in the circuit, before Judge Hooker, with a jury, and the defendant Hunt prevailed, and the judgment was rendered for costs against the plaintiff. The costs were subsequently taxed at the sum of $71.13 by the clerk of the court, on consent of the plaintiff’s attorney.
It appears that, while the proceedings were all had on the part of the defendants by defendant Hunt alone, they were carried forward in the name of both defendants, as the suits were originally commenced, except so far as the affidavits and bonds on • appeal disclose. In these it appears clearly that the appeals were taken in the interest of defendant Hunt, and for the purpose of redressing his aggrievauces in the cases.
Judgment in the circuit was rendered on the twenty-ninth day of April, 1879, and the costs were taxed on the twenty-seventh day of November, 1886.
On the thirtieth day of November, A. D. 1886, the defendant Sloan executed a receipt to tlw plaintiff, without the
“Edmund W. Hunt and Clark Sloan, Defendants and Appellants, by Clark Sloan, One of said Defendants,”—
And which the plaintiff .claims relieves him from all liability upon the judgment.
On the sixteenth day of December, 1886, the defendant Hunt made a motion to vacate and set aside the satisfaction of said judgment filed by the plaintiff in the case, thus obtained from the defendant Sloan, randf direct a retaxation of said costs in favor of the defendant Hunt. This, motion was denied by the court. It was based upon the affidavit of defendant Hunt and several others, showing that, before said' receipt was obtained, the defendant Hunt had turned out to his attorneys in the case the bill of costs, as taxed, to be applied by them upon their retainer and fees charged for services in the case, and which 'amounted.,to as much as the bill of costs taxed. The affidavits further state in substance that the plaintiff, in order to obtain an undue and unjust advantage over defendant Hunt in the premises, secured the aid of said Sloan, and that by fraudulent collusion with him,, against the just rights of the defendant Hunt, fie obtained and filed in the circuit court satisfaction of said judgment, now asked to have vacated and stricken from the files.
The affidavits upon which the motion was based do not seem to be contradicted, neither is the affidavit made for the writ in the case falsified by anything appearing in the return made thereto. The defendant Hunt claims that hisi attorneys had a lien upon the judgment which could not have been ignored by either defendant,-and that his equitable'- and •just rights entitle him to the order he asked of the circuit court.
We think under all the circumstances disclosed in the record the circuit judge should have granted the,order prayed for in the motion. There is no law or rule of practice pre
The plaintiff certainly had knowledge of all facts appearing •upon the records and files in the cases, and from these alone he could not fail to take knowledge that the appeal was taken in the interest of Hunt; that the defense was prosecuted by him, and that he was the party who claimed to be aggrieved; -that Sloan had taken no part in the defense; and that Hunt had in his employ attorneys to assist him. The plaintiff had mo right to ignore these facts, and they alone required him to . ascertain, in some way, whether or not the lien and interest in the judgment which they established in the defendant Hunt and his attorneys had been released or not. This he ■failed to do, and which, if the affidavits suggest the true .facts, he designed and colluded not to do, and he thereby subjected himself to the legal consequences of the course he saw .fit to take. These views are fully sustained by our own authorities. Wells v. Elsam, 40 Mich. 218; Kinney v. Tabor, 62 Mich. 517 (29 N. W. Rep. 86). See, also, How. Stat. §7710; Williams v. Ingersoll, 89 N. Y. 508; McGregor v. Comstock, 28 Id. 240.
The judgment of the circuit court upon the motion must • be reversed, with costs, and the record will be remanded, with direction to the circuit judge to grant the defendant Hunt’s motion.
