Wixom v. Stephens

Cooley Oil J. Stephens and Beatty brought suit in the court below against the Wixoms, upon a promissory note made by them [522] and payable to the order of the plaintiffs. The declaration was upon the common counts, with a copy of this note attached, and it also contained a special count setting forth that the plaintiffs, by the name of James Stephens and James Beatty, had recovered judgment on this note against the defendants, before a Justice of the Peace, which judgment still remained .unsatisfied and in force. The count, however, showed that only one of the defendants was served with process in the suit before the Justice. On the trial in the court below, the defendants objected to the admission of evidence of this judgment on the ground that it was between other parties than the parties to this cause, and was therefore irrelevant; but the court received it, and allowed it, against the objection of defendants, to be followed up with evidence that the suit before the Justice was commenced in the name of James Stephens and James Beatty, instead of John Stephens and James Beatty, by mistake. • The position assumed by the defendants was, that the note was merged in the judgment rendered upon it, and, therefore, could not again be the subject of suit, and, at the same time, that it was not competent for the plaintiffs to have the benefit of the judgment by proving that it was intended to be rendered in their favor. In effect, the defendants claimed that the justice’s judgment was void, but that, nevertheless, it had the effect to merge the demand upon which it was rendered. We are of opinion that no error was committed by the court in its ruling. If, by reason of the mistake, the judgment rendered by the justice 'was not valid, so that the plaintiffs could enforce it, then it would seem that it could not constitute a bar to a new suit on the note. The bar in such a case springs from the party having already obtained a higher security; and where ho has got no new security, his remedy upon the original demand is not taken away. , This was the view of the Circuit Judge, who held [523] that the plaintiffs could not recover upon the justice’s judgment, but might have judgment upon the note. The only other error- which is alleged in the case arises upon the admission in evidence of certain depositions taken on notice before a Circuit Court Commissioner. The notice was for the taking of the depositions at the office of H. D. Carpenter, at Lansing, -on September 26, 1867, at 11 o’clock a. ir. It appears that the commissioner attended at that time and place for the purpose of taking the depositions, but that neither of the defendants appeared, and that on account of the absence of one of the witnesses, after waiting two hours, the commissioner adjourned the taking of the testimony to his own office, in Mason, on the 2d day of October, 1867, at 1 o’clock p. m., at which time the depositions were taken. The defendants did not appear on the adjourned day, nor did they make any motion to suppress the depositions, nor does it appear that they ever, at any time, appeared at the place first fixed for the taking of the testimony, in order to take part in the examination. The propriety of the commissioner in any case adjourning such an examination to a different town from that fixed in the notice, is so questionable that we are not disposed to lay down any rule that shall encourage such a practice. Neither, on the other hand, do we think that parties who have been regularly served with notice are to be 'encouraged to remain away from the examination and watch for technical errors to be taken advantage of • after-wards. Undoubtedly the party notified in such a case has a ”ight to appear and participate in the proceeding at any time before it is fully closed; and if the defendants had shown in this case, that they went to Mr. Carpenter’s office for that purpose, even after the expiration of two hours, especially if the adjournment was not brought home to their knowledge in time for them to appear at the place .of adjournment, it would have been competent and proper, we think, for the Circuit Court, on motion, to suppress the [524] depositions. No such motion, however, was made, and there is nothing in the case from which we can infer that the defendants were in any way wronged by the adjournment. It was unquestionably made by the commissioner in good faith, and as it was only to his own office at the county seat, there was nothing about it which can be regarded as particularly unreasonable, or likely to result injuriously to the defendants. The commissioner had reason to believe, after waiting, two hours, that the defendants did not mean to attend, and if, after that, he consulted his own convenience in the talcing of the testimony, the defendants ought to have shown the court how they were injured before they could be heard to complain. We think, under the circumstances of this case, the judgment should be affirmed. The other Justices concurred.