Forbes Lithograph Manufacturing Co. v. Winter

Montgomery, J.

The proceeding in the circuit court was by a certiorari to a justice-of the peace. The errors assigned in the affidavit for certiorari were: First, that the docket of the justice shows that the plaintiff did not appear within one hour after the hour of return named in the summons; second, because the affidavit of account introduced in evidence was not sufficient in form, and was not served in a manner entitling it to be read in evidence.

An answer to the first point is that the docket entry is not returned, and the fact averred in the affidavit for certiorari is not made to appear.

As to the second point, it is apparent that the justice obtained jurisdiction of the defendants, so that the ques *118 tion involved is whether there was error in receiving the testimony offered by plaintiff to make out its case; or the question may be still further narrowed, as we think the point that the affidavit is void, for the alleged reason that the authority of the affiant to make the same did not appear, is without force. The affidavit stated that the affiant was the treasurer of the company. We think this sufficiently showed his authority. The question, therefore, narrows itself down to this: Whether, in the absence of an appearance or objection, an affidavit in form sufficient being introduced to sustain plaintiff’s claim,, the defendant can for the first time raise the question by certiorari that the preliminary service entitling the plaintiff to make use of it was not made.

There can be no* doubt that appeal is the more appropriate remedy to review errors committed on the trial of the case, nor is there any doubt that this* point has been pointed out to the profession a sufficient number of times. Howell v. Shepard, 48 Mich. 472 ; Erie Preserving Co. v. Witherspoon, 49 Mich. 379 ; Galloway v. Corbitt, 52 Mich. 460 ; Morrison v. Emsley, 53 Mich. 564 ; O'Hara v. Mernan, 79 Mich. 222 ; Stoll v. Padley, 98 Mich. 13 . It is true the court has in some cases reviewed rulings occurring on the trial in excluding or receiving evidence (Whittle v. Bailes, 65 Mich. 640 ); but we find no case, where the point has been distinctly made, where the court has reversed the case for error in the admission of testimony, where noi objection was made before the justice. At the common law, certiorari is not a proper remedy to* review rulings made on the trial (Spel. Extr. Rel. § 1917); and the same author, in section 1925, says:

“ If, under the practice of the State where the matter arises, other than jurisdictional questions may be examined on certiorari, the same rule applies as upon appeal; and, in order that the petitioner may avail himself of errors and irregularities committed by the lower court, it must appear that he interposed proper objection in due time.”

*119 See, also, Cousins v. Cowing, 23 Pick. 214 ; Stratton v. Com., 10 Metc. (Mass.) 217; Carolan v. Carolan, 47 Ark. 511 ; Hinman v. Eakins, 26 Mich. 81 ; McGraw v. Schwab, 23 Mich. 13 ; Hart v. Port Huron, 46 Mick. 428. In tke latter case it was said:

“ Upon all tke points in issue, tkere appears to have been evidence, and tke objection tkat it was not tke best evidence can kardly be raised now, wken tke defendant deliberately abstained from objecting.”

It is true tkat in tke case of Locke v. Farley, 41 Mich. 405 , tk'ere is a dictum tkat a defendant not appearing might raise a question of this nature; but the case called for no opinion on tkat subject, as tke defendant did appear, and it was held that, not kaving objected, ke could not thereafter raise tke question on certiorari. We are unable to see why tke fact of kis failing to appear skould give tke defendant greater right in a matter not going to tke jurisdiction of the court. He certainly would stand in no different light than a defendant who withdrew’ his plea, as was tke case in Hart v. Port Huron, supra. Had tkere been an appearance or objection in this ease, it does not appear tkat tke objection might not have been obviated by tke plaintiff’s offering other proof of its claim. See Cousins v. Cowing, supra.

Tke judgment will be reversed, with costs, and tike judgment of tke justice stand affirmed.

The other Justices concurred.