Holmes v. Heywood

1 Mich. N.P. 292

• Court: Circuit Court of the 2nd Circuit of Michigan
• Decided: October 15, 1870
• Status: Published

Opinion

Brawn, J.

As to the fmt> ground of objection, to wit, the insufficiency of the authentication of Priest's affidavit, the statute, G. L., § 4259, is clear and explicit. The affidavit was taken in Illinois, and it can not properly be read unless certified by a Judge oí a Court of record or a commissioner appointed by the Governor of this State.

2d, Where an order or consent rule has been entered in a cause, and the proceedings have been regular, such order or rule will not be set aside in any event unless an affidavit of merits is filed. The affidavit of DePuy, that Priest has stated to him “legal, substantial and equitable grounds of defense, the evidence of which- he is able to produce, and that without the evidence of Gordon and others, great injustice may and will be done,” is not within the rule requiring an affidavit of merits.

“ An affidavit that a party has a good defense without sfating the nature and substance of it is not sufficient. In fact it is not the practice of the Court to receive a general affidavit of merits”

“ The party must state npon oath, wffiat such merits are, to enable the Court to see whether they are not merely imaginary; and in order that the deponent may be liable to punishment for perjury if his affidavit is false.” Sea Ins. Co vs. Stebbins, 8 Paige, 563; Meach vs. Chappell Id,, 135.

3d, The motion if granted can result in no practical benefit to the defendants or the mover.

He could not take further proofs, because it is not an application to open the proofs.

He could, at the most, be heard in argument upon a hearing of the case, but it is not suggested what argument could be made, and the whole thing must result in hearing the case over again precisely as it has now been heard.

The Court will not do this to satisfy a mere caprice of the party.

4th, The Court is asked to “vacate the stipulation for hearing.” A stipulation is made by consent of the parties, and consent rules and orders are seldom set aside by the Court. 1 Hoff. Ch. Pr., 27.

When a decree is made by consent of Connsel, there lies not an appeal or rehearing, though the parly did not really' give his censent, but his remedy is against bis Counsel. Bradish vs. Gee Ambler, 229; Harrison vs. Ramsey, 2 Vesey, 488.

The consent qf counsel to a decree is to be given upon their own conception of the authenticity oí their instructions. And as the client is bound by the act of his counsel, he must, • if the counsel has consented without sufficient authority, seek his remedy against his counsel. 2 Dan. Ch. Pr., 1180.

It may be mentioned with reference to the subject of consent causes, that a decree or order made by consent of the counsel for the parties, cannot be set aside, either by rehearing or appeal or by bill of review, unless indeed it be made to appear that the counsel is pecuniarily irresponsible. 2 Dan, Ch, Pr., 1179, 1180; Atkinson vs. Manks, 1 Cow,, 693.

The application must be denied, with usual motion costs.