Doty v. Dexter

28 N.W. 123, 61 Mich. 348, 1886 Mich. LEXIS 905

• Court: Michigan Supreme Court
• Decided: May 6, 1886
• Status: Published

Opinion

Champlin, J.

Section 6947¹ of Howell’s Statutes provides :

“Whenever an execution may, by law, be issued upon any judgment rendered by a justice of the peace, for twenty dollars or overj exclusive of costs, the party in whose favor such judgment shall have been rendered, or his attorney, may make and deliver to the justice of the peace having the control of any such judgment an affidavit, setting forth, in substance, that the deponent knows, or has good reason to believe, and does believe, that there is not sufficient goods and chattels liable to execution to satisfy such judgment, within the ■county in which such judgment was rendered, belonging to uny person or persons against whom such execution may issue; and thereupon it shall be the duty of the justice of the peace having the control of any such judgment, rendered by himself or any other justice, on the demand of any person in whose favor the same shall have been rendered, or his attorney, to give a certified transcript of such judgment, and of the proceedings in the case, so far as they appear upon the docket, together with the original security for stay of execution, if any such security shall have been given, and the origin ai affidavit required by the preceding provisions of this section.”

The two succeeding sections provide that if the plaintiff, his agent or. attorney, shall make an affidavit stating the amount due upon such judgment, it shall be the ditty of the ■clerk of the circuit court to file the transcript in his office when requested, and to enter and docket the judgment in a book to be kept for that purpose; and thereupon such judgment shall have the same effect as a judgment rendered in the circuit court, and may be enforced, discharged, and canceled, ■and execution may be issued thereon.

On the twentieth day of December, 1878, Eleazar K. Fairbanks brought suit before a justice of the peace against Daniel P. Doty, and recovered judgment, on the twenty-seventh day of December, 1878, for $99.50, and costs. No execution was ever issued by the justice to enforce the collection of this judgment.

On the nineteenth of November, 1882, Fairbanks died, and Harvey A. Wing was appointed administrator with the will annexed, and entered upon the execution of his trust. June 20, 1884, Wing made and filed with the justice an affidavit, •of which the following is a copy:

“ State oe Michigan — In Justice Court.

“ Fleazar K. Fairbanks, Plaintiff, v. Daniel P. Doty, Defendant.

“ Before Eeason S. Pemberton, one of the justices of the peace in and for the county of Cass.

“Harvey A. Wing, being duly sworn, deposes and says that Eleazar K. Fairbanks, the above-named plaintiff, is now dead, and that he, the said Harvey A. Wing, has been duly appointed administrator with the will annexed of all and singular the goods and chattels of said Eleazar K. Fairbanks, deceased, and that he makes this affidavit as such administrator, and on behalf of said estate, being fully authorized ■so to do.

“ That there is now due and remaining unpaid upon the judgment heretofore, on the twenty-seventh day of December, A. D. 1878, rendered in the above-entitled cause by the •above-named justice, in favor of the plaintiff above named, and against the above-named defendant, the sum of one hundred fifty-three and 89-100 dollars, exclusive of costs, and that execution may now be issued upon said judgment for the collection thereof; and defendant further says that he has good reason to believe, and does believe, that there is not sufficient goods and chattels liable to execution to satisfy said judgment within the county of Cass,'where said judgment was rendered, belonging to the said Daniel P. Doty, or to any other person or persons against whom such execution may issue.

“ Harvey A. "Wing.

“ Sworn and subscribed to before me this twentieth day of June, A. D. 1884.

“ Reason S. Pemberton,

“Justice of the Peace.”

He thereupon procured from the justice a transcript of the judgment, and of the proceedings had in the cause before the justice, and filed the same, with the affidavit, in the office of the clerk of the circuit court of Cass county, where the judgment was duly docketed and entered.

Cn June 25, 1884, an execution was issued out of the circuit court, based upon such judgment, directed to the sheriff of St. Joseph county, and the same delivered to the defendant as such sheriff, who, by virtue thereof, levied upon and seized a horse, harness, and phaeton belonging to Doty, who brought this suit in replevin, claiming the property as exempt from execution.

Subsequently to the commencement of the suit, Daniel P, Doty died, and the suit has been revived by his widow, Sarah J. Doty, as administratrix of his estate. On the trial the plaintiff introduced testimony tending to prove that the property levied upon was exempt from execution, and rested her case. The defendant attempted to justify under the execution issued upon the statutory judgment obtained by filing the transcript. The circuit judge at first admitted the transcript and execution in evidence, but afterwards struck the testimony from the case, and directed a verdict for the plaintiff, for the reason that the administrator of Fairbanks was not authorized to make the affidavit to obtain a transcript.

If; has been held by this Court that the whole proceeding in reference to transcripts is statutory, and must be strictly followed; and if the statutory requisites are not complied with, no valid execution can be issued thereon: O'Brien v. O'Brien, 42 Mich. 15; Monaghan v. McKimmie, 32 Id. 40; Peck v. Cavell, 16 Id. 9; Jewett v. Bennett, 3 Id. 200.¹

By referring to the statute above cited, it will be seen that the justice having control of the judgment is only authorized to make and certify the transcript upon the demand of the plaintiff or his attorney, based upon an affidavit made and delivered by the party in whose favor the judgment shall have been rendered, or his attorney. It is plain that this cannot be done where the party in whose favor the judgment is rendered is dead. The affidavit is jurisdictional, and if not made by the party authorized by the statute, is a nullity. An affidavit made by an administrator is not an affidavit made by the party in whose favor the judgment is rendered. Neither can the affidavit be made by an attorney who acted for the party in obtaining the • judgment, for death terminates the relation, and revokes the authority of the attorney.

Had the Legislature intended to authorize the administrator, or other party beneficially interested in the collection of the judgment, to make the affidavit, it doubtless would have conferred the authority in express terms. It expressly authorizes the administrator to prosecute any action commenced by the deceased in his life-time, for the recovery of any debt or claim, to final judgment-, and to have execution on any judgment already obtained. Further than this the Legislature has not gone towards enforcing collections of judgments standing in the name of a deceased plaintiff.

In this case the administrator might have had an execution issued upon the judgment by the justice, which could have been levied upon any personal property of defendant found in the county of Cass. But in order to seize property in the county of St. Joseph the administrator would have been obliged to sue the defendant in the county of St. Joseph upon the judgment, and obtain a new judgment in that county.¹

This lie sought to avoid by filing a transcript in Cass county, and issuing execution to the sheriff of St. Joseph •county.

For reasons stated above, we think this could not be legally •done by the administrator. The proceeding to obtain the transcript was unauthorized, and the entry and docketing of the judgment in the clerk’s office for the county of Cass formed no legal basis for the execution under which the defendant attempted to justify.

The judgment must be affirmed-.

The other Justices concurred.

1 Act 173, Public Acts of 1885, p. 239, amends this section by authorizing the affidavits therein mentioned to be made by “ the party in whose favor such judgment shall have been rendered, his assignee, or the attorney of either of the parties.”

1 The removal of a justice’s judgment by transcript to the circuit court is accomplished by ex parte proceedings, and a strict compliance with the statutory provisions is essential to their 'validity: Jewett v. Bennett, 3 Mich. 198; Peck v. Cavell, 16 Id. 10, 11; Monaghan v. McKimmie, 32 Id. 41; O’Brien v. O’Brien, 42 Id. 16.

The transcript must be certified according to the statute: Jewett v. Bennett, 3 Mich. 201.

The return of an execution unsatisfied is not required under How. Stat. § 6947, before takinga transcript: Udell v. Kahn, 31 Mich. 197; but judgments on which execution'caunot issue for five days after rendition are not removable to the circuit court before the expiration of that time: O’Brien v. O'Brien, 42 Mich. 16; Vroman v. Thompson, Id. 146.

The transcript must be officially signed by the justice, and the appearance of his name in the certificate is not sufficient: Bigelow v. Booth, 39 Mich. 624.

The failure of the affiant to affix his signature to the affidavit for a transcript will not invalidate it if actually sworn to: Dickinson v. Simondson; 25 Mich, 115; Merrick v. Mayhue, 40 Id. 199.

The affidavit required to be filed with the justice under How. Stat. § 6947, need not state the amount due on the judgment: Smith v. Circuit Judge, 46 Mich. 339; but if stated, and the affidavit and transcript are filed with the clerk without such delay as would or might raise a presumption of payments being made in the interim, no second affidavit is required: Id.

In the case last cited one day intervened, and in Udell v. Kahn, 31 Mich. 197, three days, and one affidavit was'held sufficient; but in Bigelow v. Booth, 39 Mich. 624-5, eight days delay in such filing was held fatal.

1 The Legislature sought, by Act 205, Laws of 1885, p. 284, to provide for the transfer, from the county where rendered to other counties in the State, of j ustice’s judgments rendered upon personal service of process, and not exceeding twenty dollars in amount, exclusive of costs, the provisions of which act may be summarized as foliows:

Sec. 1 authorizes the party in whose favor any such judgment shall have been rendered, or his attorney, whenever an execution may, by law, be issued thereon, to make and deliver to the justice having control of such judgment an affidavit stating the amount due thereon, including a transcript fee of two dollars to be paid to said justice before any transcript is issued, and setting forth, in substance, that the deponent knows, or has good reason to believe and does believe, that there is (are) not sufficient goods and chattels liable to execution within the'county in which such judgment was rendered, belonging to any person or persons against whom such execution may issue. — (The words “to satisfy said judgment” are omitted. What effect such omission has upon the section and act is for the courts to decide.)

Sec. 2 makes it the duty of the justice to send a certified transcript of the judgment, etc., with a statement of the amount sworn to be due thereon, and a fee of one dollar, by mail, postage prepaid, to any justice in the State to whom the party procuring the transcript shall request it to be sent.

Sec. 8 provides for the entry of such judgment in full, by the justice receiving the same, upon his docket, with a note of the time of its receipt and the amount sworn to be due thereon.

Sec. 4 gives to such judgment the same force and effect as if rendered by the justice receiving it, and provides for its enforcement, by execution or otherwise, and its discharge and cancellation, the same as any other like judgment on his docket.