86 Mich. 7 | Mich. | 1891
This action was brought by attachment -in justice’s court under Act No. 229, Laws of 1887, to enforce a lien upon certain logs of the defendant. On the trial plaintiff had judgment for $16 and costs of suit, and for a lien upon the logs. The cause was removed by certiorari to the circuit court for Clare county, where the judgment was affirmed. The cause comes to this Court by writ of error.
The errors complained of are set forth in the affidavit for the writ of certiorari to the justice,’ and are:
1. That the notice of the lien was not properly sworn to as required by the act.
*10 Because no testimony was given on the trial tending to prove any agreement with defendant or any authorized agent of his, or any contractor under defendant, with plaintiff that he should do any work on said logs, and no proof that defendant or any agent of his or contractor under him knew that plaintiff was doing work on said logs.
“ 3. Because no testimony was offered of any contract with defendant or his agent for any specific wages, and no proof of how much his labor was worth.
“4, Because said justice gave judgment in said cause for an attorney fee of five dollars.
“ 5. Because the person who claimed to be the attorney for plaintiff, and was so recognized by said justice, undertook to administer the oath to plaintiff of the notice claiming lien against the property attached.
“6. Because the evidence given at the hearing of said cause did not warrant any of the findings or judgment of the court.
“ 7. Because no evidence was given tending to prove that the property mentioned in said writ of attachment and in plaintiff’s declaration are the same.”
There is no force in the objections made that there was no evidence tending to show the plaintiff’s claim. The evidence was not reduced to writing, and is not returned. The justice, in his return, states that the plaintiff was sworn in his own behalf, and after listening to the testimony, and after due deliberation, he gave judgment for the plaintiff. Under these circumstances we cannot presume that there was no evidence tending to support the judgment.
The wriUof attachment contains a description of the property attached, and the declaration contained the same description, and there is therefore no force in the seventh assignment of error.
It is not shown that the notary public who administered the oath to the plaintiff on the statement or claim of lien was the attorney for the plaintiff at that time. The lien was sworn to, and filed in the office of the
The fourth assignment of error is not noticed in the brief of counsel, and will be treated as abandoned.
The only remaining assignment of error is the first, which relates to the notice of lien. No objection is made to the statement except that the same does not show in what county the oath was administered. - The claim of the lien is in the following form:
“The statement of lien made under oath- of Michael Sullivan for work and labor performed by Michael Sullivan in manufacturing, cutting, skidding, the following described property, to wit; One million feet of white pine, and hemlock saw-logs, marked as follows:
“That the last day’s work of said labor was done on the 8th day of February, 1889, and said labor was performed in the county of Glare; and the said described property, or a portion of the same, is now situated in the county of Clare, State of Michigan; and that there is now due claimant for said work and labor, over and above all legal set-offs, the sum of 816, as near as may be, for which said sum a lien is claimed upon said described property.
“Michael Sullivan.
“Subscribed and sworn to before me this 9th day of February, 1889.
“Henry K. Wickham, Notary Public.”
The statement of lien has no caption showing the county or state in which it was made. It follows the form laid down in the statute, but, inasmuch as the notary public does not state in the jurat the county in which he acts as such officer, it is contended that no
“ The Governor, by and with the advice and consent of the Senate, may appoint one or more persons notaries public in each county, who shall hold their offices," etc. Act No. 117, Laws of 1887.
While it is very proper that a notary public should sign himself as a notary public in and for the county from which he is appointed, yet his certificate would not
It is' true that under the amendatory act of 1889 (Act 74, Laws of 1889) no person is eligible to the office of notary public unless the person is a resident of the county of which he or she desires to be appointed, yet their official acts are not necessarily confined. to that county. The office would undoubtedly become vacant by removal from that county, but it does not follow that for this reason the party is a county officer. The appointment has always been regarded as one of State matter, rather than that of county. It is a State appointment, and the omission of the venue would not be a fatal defect in the jurat. It cannot matter to the party to be affected by such certificate from what particular county the notary public was appointed.
In legal phraseology “venue” means the county where a cause is to be tried, and originally a venue was employed to indicate the county from which the jury was to come.
The necessity of stating a venue at all is reluctantly confessed by the authorities. Bean v. Ayers, 67 Me. 487; Briggs v. Bank, 5 Mass. 95. In process or pleading, the objection under the strict rules of the common law, and perhaps under our statute, to the want of venue might be taken advantage of by demurrer. It may also be true that a certificate made by a justice of the peace would be void if it omitted the venue, were no venue stated at all in the instrument. But the question here involved is not to be governed by the reasons which would be applicable in such cases.
Claim is also made by appellant in his brief that the act under which the lien is claimed is unconstitutional
Judgment affirmed, with costs.
