Van Kleek v. Eggleston

Campbell J.: This cause comes up for review on case made after judgment from the Lapeer Circuit Court. Suit was brought in the circuit court upon a justice’s judgment, rendered in favor of Van Kleeck against Eggleston, before Benjamin Thorn, justice of the peace. The justice’s docket and files were lost, but proof was made of its contents, whereby it appeared that a suit was commenced before him by summons, which was returned personally served, and that on the return day, the defendant not appearing, the plaintiff declared upon a note for $57,73. A witness was sworn, and after hearing the proofs and allegations, the justice rendered judgment for the plaintiff for $73,69 damages, besides costs of suit. Proof was made by the justice that the summons was served six days before the return day. The circuit judge rendered judgment against the plaintiff5 on the ground that it did not appear that the cause of [514] action was one of which the justice had jurisdiction, and that it did not appear that the note was' made payable to> the plaintiff, or to the order of any person, or to bearer. The objection which is made by the defendant in error, that it does not appear that the justice of the peace had jurisdiction over the party, for want of adequate proof of service of summons six days before the return day, does not properly arise in this court, because the case made does not show that the circuit court passed upon this question. If, however, we can regard the case as pointing to it, we are satisfied the objection has no force. In the absence of the original files, the judgment was proved to the satisfaction of the circuit court, by secondary evidence; and the fact of a sufficient length of service was also proved. Wo do not perceive how any more could be done. The court having found the necessary facts to give the justice jurisdiction, it was erroneous to find that he had none. The objection that the date of service of the summons should have appeared on the transcript of the docket, is not tenable. The statute did not require it to be entered there at all. — R. S. of 1846, p. 412. It would only appear by the return, and when that is lost, it may be proved, as was done here, by secondary evidence of any kind. The justice's court having obtained jurisdiction over the defendant, and the declaration being assumpsit upon a note, for an amount within the cognizance of a justice, we think it would be a violent assumption, in an action on a judgment which was never appealed from, to entertain the idea that the justice gave judgment upon proof of a note on which the defendant was not liable to the plaintiff. Such' questions must be disposed of upon an original trial, and the judgment, if unreversed, concludes them. Judgment must be entered for the plaintiff in,error,for the amount recovered before the justice, with interest,' and costs of the circuit and of this court. The other Justices concurred.