Shaw v. Fortine

57 N.W. 128, 98 Mich. 254

• Court: Michigan Supreme Court
• Decided: December 22, 1893
• Status: Published

Opinion

McGrath, J.

Plaintiff recovered judgment in justice’s court againt Charles and Mary Fortine, husband and wife, upon a promissory note made by both. Defendants removed said judgment into the circuit court by certiorari, where the judgment was set aside, and plaintiff appeals.

The affidavit for the writ alleges the following grounds of error;

1. That the justice adjourned the cause for more than six days, and thereby lost jurisdiction.

2. That the justice erred in giving judgment against the wife, who joined in the execution as surety merely.

• 3. That “ C. F. Shaw" was not a legal person, in contemplation of law.

As to the first assignment, it appeared by the return of the justice that both parties asked an adjournment of the cause; defendants asking for 30 days, and plaintiff ftp- 8 days. The justice adjourned the cause for 7 days. A party to a cause, who has himself requested an adjournment for 30 days, cannot be heard to say that an adjournment for a less number of days was upon the justice’s own motion, and without the consent of the parties. Patterson v. McRea, 29 Mich. 258.

As to the second assignment, the return of the justice shows that the consideration for the note in question passed to Mary Fortine.

As to the third assignment, the statute (How. Stat. §■ 6871) expressly provides that in actions on promissory notes it shall be sufficient, in any process or declaration,, to designate any person named in said note by the same-initial letter or letters, or contraction of the Christian name, as is used in said note, instead of stating such Christian name in full.

The judgment of the circuit court will be reversed, and' judgment entered here for plaintiff, with costs of all the-courts.

The other Justices concurred.