Weaver v. Lammon

28 N.W. 905, 62 Mich. 366, 1886 Mich. LEXIS 809

• Court: Michigan Supreme Court
• Decided: July 8, 1886
• Status: Published

Opinion

Champlin, J.

Weaver brought an action of replevin before a justice of the peace against the defendant. The summons was personally served, but whether the property was seized upon the writ does not appear from the record before us. The suit was tried on the tenth of December, 1884, and the justice’s docket shows that he took until Monday, the fifteenth of December, to look over the testimony before giving a decision of the case. <•>

The justice’s docket shows that on Monday, the fifteenth of December, he rendered judgment in favor of the plaintiff, and against the defendant, who sued out a certiorari to the circuit court of Oceana county. In making return to this writ the justice certified that he rendered judgment on the thirteenth of December. An amended return was ordered requiring him to state specifically whether his docket showed that the cause was tried and submitted on the tenth of Decembei’, and the judgment rendered on Monday, the fifteenth of December. This order bears date the fourth of March, '1885.

On May 8, 1885, the justice makes return that the suit was tried and submitted on the tenth, and the same so appears upon his docket; and that it also appears from his docket that judgment was rendered on the fifteenth day of December, 1884; but in his return to the order he says that such entry in his docket is a mistake ; that he did render his judgment on the thirteenth, and, by mistake, entered it as of the fifteenth, of December, 1884. Thereupon the circuit judge reversed the judgment of the justice, and gave judgment for the defendant, against the plaintiff and his surety, for costs.

The judgment as it appears entered in the docket must control.

The record of his judgment in his docket cannot be contradicted by his return to the writ: Mudge v. Yaples, 58 Mich. 310. The judgment of the circuit court is in accordance with our previous rulings. Harrison v. Sager, 27 Mich. 476; Brady v. Taber, 29 Id. 199; Simonson v. Durfee, 50 Id. 80.

In Galloway v. Corbitt, 52 Mich. 460, it was said that the justice’s return to certiorari must be taken as true. But this must be confined, as -it was in that case, to a return as to facts and occurrences not required by the statute to be entered upon his docket, and as to those facts the docket entries are the best evidence, and must prevail over his return.¹

The judgment must be affirmed.

The other Justices concurred.

1 See Gordon v. Sibley, 59 Mich. 250, as to power of circuit court to order a further return on its own motion, and against the protests of plaintiff in error.