Bauer v. Wasson

Champlin, J. Wasson was proceeded against before a circuit court commissioner for unlawfully withholding the possession of premises after the expiration of his lease, and was found guilty. He appealed to the circuit court, and with the [196] other defendants as sureties, executed the bond upon which this suit was brought. This action was commenced before a justice of the peace, and the bond was not filed with the justice. The declaration was in writing. The plaintiff recovered before the justice, and the defendants appealed to the circuit. The justice failed to include the declaration filed among his papers, but had lost the same. On the trial in the circuit the fact that the declaration was lost from the files of the justice was proved, and plaintiff was permitted to file a copy in-order to restore the lost file and complete the record. This was done against defendants’ objection, and constitutes their first assignment of error. The action of the circuit court was proper, and the first exception is overruled. In order to show the proceedings had before the circuit court commissioner, and to identify them, the counsel for plaintiff offered in evidence the files in that case, embracing the return of the commissioner to the action, including the proceedings had in the circuit court. The bond declared on appears among the papers returned by the commissioner. The counsel for plaintiff then offered in evidence the bond-attached to the return of the commissioner. This was objected to by defendant for the reason that the execution of the bond had not been proven. The plaintiff’s counsel then urged its admission, on the ground that the declaration alleged the instrument, and it proved itself unless denied. The court overruled the objection, and admitted the bond in evidence, It is urged" here that there was no prejudicial error in this ruling, for the reason that the bond had already been received in evidence as a part of the commissioner’s-return. The record shows that it was not so regarded at the time. The return was offered for a specified purpose, and not for the purpose of putting the bond declared on in evidence, and it cannot be considered as having been received, in evidence for the purpose of establishing the liability of' the defendants as obligors therein. The ruling of the court when the bond was offered to be read in evidence was erroneous. The pleadings were those that were put in before the-justice. And as the bond was not filed with the justice, the [197] plaintiff could not recover without proof of execution by •defendants. No new issue was framed in the circuit, and rule 79 did not apply : Colbath v. Jones, 28 Mich. 280; McMillan v. Beach, 38 Mich. 397. The judgment must be reversed, and a new trial granted. The other Justices concurred.