Rector v. Drury

Howe, J.

To an action of assumpsit upon a promissory note, payable in corn, the defendant Drury set up the defense, that the corn had been attached and sold in his hands upon a judgment recovered against him as the garnishee of Rector, in favor of one Clarjc

Upon that defense Drury had judgment in the county court of Marquette county, the record of which is brought here on error.

Numerous exceptions were taken upon the trial below, and several errors are assigned upon the record here, as, 1. The plaintiff objected to the introduction in evidence of transcripts from the justice’s docket, of the judgments recovered by Clark against Rector, and against Drury as his garnishee, until the affidavits should be produced, on which the writ of attachment *301 and tbe garnishee process issued. The court overruled tbe objection, and this is the first error assigned.

We think the learned judge clearly right in overruling that objection. He certainly did not controvert the doctrine contended for by the plaintiff’s counsel here, to wit: that the jurisdiction of inferior courts is not presumed, but must be proved ; he simply held the transcript to be competent proof of that jurisdiction, so far as it recited the facts necessary to give jurisdiction, and in so holding is sustained by the express declaration of our statute. R. S., ch. 98, sec. 87.

2. It was objected that the justice, by rendering judgment against the principal defendant Rector, before he had examined the garnishee Drury, had discontinued the suit as against the latter, and therefore tbe judgment rendered against him by the justice is void. But, however irregular it might have been to examine the garnishee after judgment rendered against the prin.-cipal defendant, we are satisfied that the garnishee alone could object to it. It was no discontinuance. The garnishee might possibly have urged the former judgment as a bar to any examination of him, or to any judgment against him, but by not taking the objection upon the trial, we think the irregularity is waived. It could in no case affect the judgment previously rendered against Rector. The command of the statute is not that judgment should not be rendered against the principal defendant until the garnishee shall have been examined.

The rights and liabilities of Clark and Rector were determined by that first judgment. In the collateral controversy between Clark and Drury, the defendant Rector had no legal interest. He had already been adjudged to pay Clark a certain sum of money, and it was not important to him whether Clark should collect that sum out of property in his own hands or in the hands of Drury. The latter was interested to deny that he had any property in his hands belonging to Rector, but, instead of denying, he admits the fact. He makes the admission without objection, after the irregularity had occurred, and *302 by every rule of practice must be deemed to have waived it. Having waived tbe objection there, he cannot avail himself of it now, a fortiori. The defendant Hector, who was not prejudiced by the irregularity, must be held concluded by the judgment there pronounced.

3. The plaintiff below offered the testimony of a witness to show that the justice who rendered the original judgments against him and his garnishee was brother-in-law to Clark, the plaintiff in those judgments; which testimony was objected to and overruled; which is another of the alleged errors.

It is provided by the 47th section of the 88th chapter of the revised statutes, that if, previous to joining issue in any suit, “it shall appear that the justice is near of kin to either party, then, and'in such case, the said justice shall transmit said suit and all papers appertaining to the same, to some other justice of the same county, who may thereupon proceed to hear, try and determine the same, in the same manner as it would have been lawful for the justice before whom the said suit was commenced to have done.”

It would, perhaps, be difficult to say upon any rule of legal construction that brothers-in-law are near of kin to each other, however their relations may come within the purview of those mischiefs which the legislature intended to guard against. The terms kindred and consanguinity are used by Blackstone synonymously, and are defined as “ the relation of persons descended from the same stock or common ancestor.” 2 Black. Com., 203.

And I believe that all law authors use the term kin or kindred as descriptive of those only who are related by consanguinity. In ordinary speech the word may sometimes be used in a different sense, and as descriptive of those who are related by affinity.

But, whatever may have been the true signification which the legislature intended to give that term, it must be remarked that the command of the statute is not absolute to the justice so *303 related, not to sit in judgment between tbe parties, but it is conditional, “if it (the relationship) shall appear,” be shall transmit tbe cause to another justice; and not then, unless the objection appear before joining issue in the suit. The objection then, clearly, is not fatal to the jurisdiction of the justice, unless it be made to appear. If it exists, it may be waived by joining issue in tbe suit. And if tbe defendant may waive the objection by denying the cause of action, with stronger reason should he be held to have waived it by confessing the cause of action, or by suffering default upon it. After final judgment has been rendered, we think it too late to raise the objection.

Again, it is objected that the judgment of the justice upon the disclosure of the garnishee was for the payment of money, whereas, it should have been for the delivery of the corn admitted to be in his hands, according to the provision of the statute. R. S., ch. 88, sec. 130.

To this objection, it is sufficient to reply that the justice had, as we have seen, jurisdiction of the cause and of the parties, and was thereby clothed with authority to pronounce a right judgment. And I think it was as clearly his prerogative to pronounce an erroneous judgment. If he in fact did so, the judgment might have been avoided, but it cannot be void.

I shall not notice individually the multiplied exceptions taken to the instructions given or refused to be given to the jury by the judge below. "We have discovered no error therein which could have affected the issue of the controversy, and are therefore of opinion that the judgment of the county court must be affirmed.