County of Montmorency v. Wiltse

Grant, J. (after stating the facts). ' 1. It is urged that the court should have directed a verdict for the defendants. Counsel do not argue the proposition, but, in their brief, merely say, “Under the above state of facts, the defendants claim the court should have taken the case from the jury.” It would be sufficient to state that the record fails to show that defendants made any such request. Aside from this, however, we think there was sufficient evidence to go to the jury upon the question of mistake in the settlement. The mere fact that some of the records were lost, and vouchers destroyed, is not con50 elusive against the plaintiff’s right of recovery, in the presence of evidence tending to show that legitimate charges were omitted. 2. Defendant testified that he did not receive from his predecessor’, one Meyers, any cash, but that the entire amount consisted of township orders, and duebills held against saloon keepers. He also testified that he did not receive that amount in any form, by at least $500. Mr. Wiltse gave, as he was obliged to, a bond, before he could receive any money from his predecessor. He was under no obligation to receive any order or duebill as cash. He, however, did receive it as cash. Having so .received it, he must be charged with it as cash. There is no testimony to show that the supervisors were notified of this fact until the first settlement with Wiltse. We think that both Wiltse and his bondsmen were bound by his action in receiving these orders and duebills. Besides, no offer is shown by the record to have been made by the defendant to show how much he received upon these orders and duebills. He is certainly accountable for what he received, and it was incumbent upon him to show that he received nothing on them, or, if anything, how much. But as to this the record is silent. The question whether he did not in fact receive from his predecessor $500 of that sum was left to the jury. 3. It is urged that the circuit court for the county of Cheboygan had no jurisdiction in this case, because the circuit court of Montmorency county had no jurisdiction to make an order for the change of venue. Upon the opening of the trial, counsel objected to the trial of the cause, because of this change of venue. The proceedings in the circuit court for the county of Montmorency are not in the record. In reply to the objection of counsel, the court said that the order transferring the cause seemed to be regular. The precise ground, as we understand it, is that no application was made by either party for a change of venue, but that the order was made by the court upon its own motion, after two trials in the former county. This [51] is not shown by the record. If the defendants desired to object to this action, they should have tested its legality by the writ of mandamus. They cannot wait until the case is called for trial, and then object to the jurisdiction of the court because of defects in the proceedings for change of venue. It was contended in Lewis v. Wiedenfeld, 114 Mich. 581 (72 N. W. 604), that the State court had no jurisdiction to try the case, because the order of the United States court remanding the case was erroneous. It was held that the action of the federal court in remanding the cause could not be reviewed on appeal from a final decree entered in the State court. So in this case this court will not review the action of the court of Montmorency county in removing the cause to the county of Cheboygan for trial. Affirmed. The other Justices concurred.