Boyle v. Berg

218 N.W. 757, 242 Mich. 225, 1928 Mich. LEXIS 756

• Court: Michigan Supreme Court
• Decided: October 25, 1927
• Docket: Calendar 33,317, 33,318
• Status: Published

Opinion

Fellows, J.

(after stating the facts). Both cases will be disposed of in one opinion, as the facts are identical. Plaintiff’s counsel has traversed the return, and asks for the framing of an issue to determine the questions of whether the surety had the property he claimed to own and was worth the amount he claimed he was, and whether the order as entered in the journal and as signed by the circuit judge was in accordance with the opinion of the circuit judge as originally announced by him. He also asks that the issue be tried by a circuit judge other than the judge of the Muskegon circuit. We must decline to frame such an issue. It could not benefit plaintiff’s case. We may assume, for the purposes of the case, that the individual surety is worth all that he claims to be worth. But on the other question it is patent that the order entered in the journal of the court, approved and signed by the circuit judge, can not be attacked by evidence, if it is obtainable, that the trial judge did not, by using the words “surety bond,” have reference to a surety company bond, and that therefore the order went further than the opinion. Courts speak through their judgments and decrees, not through their opinions. Harnau v. Haight, 212 Mich. 66. The order as entered and signed by the circuit judge may not be impeached in this proceeding against the clerk.

The clerk drew his authority to approve bonds in these cases solely from the orders of the court. • The bonds tendered did not comply with the requirements of the orders. This is a complete answer to plaintiff’s prayer for mandamus.

The writs will be denied, with costs to defendant.

Wiest, Clark, McDonald, and Sharpe, JJ., concurred. North, J., did not sit. The late Chief Justice Flannigan and the late Justice Bird took no part in this decision.