Polhemus v. Ann Arbor Savings Bank , 27 Mich. 44 ( 1873 )

The Court

held that the case was still in this court' notwithstanding the removal of the hill of exceptions for amendment, and was subject to be noticed for hearing.

Motion denied, with costs.

“ 7. The said circuit court erred in each of its rulings and decisions overruling each of the objections made on the part of said Polhemus to the reception of evidence offered on the part of said bank, which' was received in evidence and excepted to on the part of said Polhemus, as shown by Eaid bill of exceptions.

“ 8. The said circuit court erred iu each of its decisions excepted to as shown by said bill of exceptions.

“9. The said circuit court erred in giving the judgment shown by the record in this cause.”

Lawrence & Frazer and H. J. Beahes, for plaintiff in error. Íj. D. Coleman, for defendant in error.

Grates, J.

This is a writ of error to the circuit court for the county of Washtenaw.

The bank sued the plaintiff in error in assumpsit, and ■the declaration by which the suit was commenced counted specially on a note alleged to be of the following tenor:

“Canton, March 4, 1870.

“Eighteen months after date, I promise to pay to the order of Ja. A. Saxton, in Ex. on New York, thirty two hundred twenty-three dollars, at Miller & Webster’s Bank, Ann Arbor, Michigan, with 7 per cent, interest from Feb. 18, 1870. '

“J. A. Polhemus.”

Endorsed, “Ja. A. Saxton.”

The money counts were also added, together with a copy of the note and endorsement.

The declaration was filed in December, 1871, and on the 22d of January following the plaintiff in error pleaded the general issue, accompanied by a notice that he would.defend upon several grounds none of which, however, indicated ¡that the note set up was not genuine, and no affidavit was made on the subject. In July, 1872, the cause was tried on these pleadings, by the court without a jury, and judgment was given in general form in favor of the bank.

Several errors are assigned, but the sixth, seventh, eighth and ninth are clearly insufficient under the rule requiring assignments of error to be special, and the observations of my brother Cooley in Altman v. Wheeler, 18 Mich., 240, are so strictly applicable as to make further comment unnecessary. We may add, however, that on an inspection of the record we fail to discover satisfactory ground for any objection apparently hinted at by these assignments.

The fourth assignment maintains that the ‘'court erred in refusing to permit the said Polhemus to inquire into the consideration of said note and to contest said note in respect to the consideration thereof.” Without pausing to criticise the form of this assignment in its bearing upon the return to the writ of error, it is sufficient to say that the defense shadowed forth in the record was not available against the bank. No right to such defense existed if the bank became the holder of the note in good faith and for value, and the evidence upon this point was not only direct and clear in favor of the bank, but unopposed, so far as we discover, by any thing proved or offered of a contrary tendency. The court sitting without a jury and bound to pass upon the facts as well as the law, ruled that the bank became the holder in good faith and for value, and excluded the defense. We see nothing to impugn the correctness of this action of the court.

Whether we should be authorized to re-examine a decision of this character, made during the. trial by the court when exercising the functions of both court and jury, and deciding the facts as well as the law, if the evidence relating to the point should be seen to have been conflicting, is a question we have no occasion to consider, and do not determine.

The plaintiff in error further complains because he was not allowed to show that the note, as described in the declaration and as produced in evidence, was not as he executed it.

The record effectually answers this objection. The case was being tried without any affidavit questioning the genuineness or identity of the instrument. As a consequence it stood admitted by the record that the note was given substantially in the form specified in the declaration, and this admission the plaintiff in error was not at liberty to contradict. A material' variance between the contract as pleaded and as shown in the evidence would of course have raised a point available to him.

The objections which seem to be chiefly relied on relate to and grow out of the action of the court upon an application by the plaintiff in error for leave to amend by putting in an affidavit denying the execution of the note.

The return to the writ of error embraces a bill of exceptions, and we also find included, this motion, the affidavits and exhibits connected with it, and the decision of the court in denying it. These proceedings are also embodied in the bill of exceptions. The motion appears to have been made some four months after the plea, and to have been decided about six weeks after it was made. In passing upon it the court declared that it had no power to grant it, and therefore refused it without considering the merits, and the plaintiff in error excepted.

We think the court misapprehended the meaning of the rule in supposing a lack of power to grant or refuse the motion according to its view of the real merits of the application. The rule as framed was intended to leave a discretionary authority to be exercised as the justice of particular cases should require, so that parties could be let in after pleading, upon good cause. The motion, then, was really an appeal to the discretionary power of the court below, and might have been granted or denied upon the merits in the exercise of that power. If the court had acted upon that view, if it had denied the motion upon the merits, instead of doing so upon the ground that it lacked power to grant it, then according to the established course in this state and that gen-ally prevailing elsewhere, the ruling could not have been reviewed upon writ of error. Can the ground on which the court placed the denial of the motion, be so separated from the denial itself as to present a' case entitled to review on writ of error when otherwise none would exist ?

We think not. In the first place it may be observed that if the motion itself and the decision made upon it are regularly before us as constituents of the record, the afiSdavits and exhibits connected with it are necessarily before us also; and we are therefore in a situation to ascertain what it would be our duty to ascertain, whether the court in denying the motion upon the mistaken ground of a lack of power in the abstract to grant it, committed a fault which' in legal contemplation was prejudicial to the plaintiff in error. Now these papers cannot be read without seeing that the fate of the motion must have been just the same-if the court had decided on the merits. The plaintiff in error was consequently not prejudiced by the erroneous reason given for the denial of his motion. But we think the ruling upon the motion, on whatever ground placed, is not one properly open to review upon writ of error.

The rules devised for judicial investigations are undoubtedly aimed to promote the ends of justice, but they are necessarily subject to those infirmities which beset all human regulations. They cannot be so nicely contrived or so multiplied as to meet all necessities, or to operate always according to the exact purpose of their institution. A perfect system would supply a definite and unmistakable rule in advance, applicable to every contingency, and would leave nothing to discretionary action. But every day’s experience teaches that such degree of perfection is unattainable. We know that the litigation carried on in courts involves a class of questions not amenable'to any unbending pre-ordained rule, and that many, if not most of these, questions, could not be specifically or definitely provided for beforehand by absolute regulations without making our system so cumbrous and complicated as to be incapable of being carried out. These matters must, therefore, be settled as they arise, by the tribunal in which they occur, according to the dictates of sound judicial discretion. The law, upon grounds of public policy and general utility, commonly allows a re-examination of such matters in some form and at some stage in the same tribunal, but on the same grounds, generally disallows a revision elsewhere. The welfare of society requires, of course, that there should be given reasonable opportunity for the hearing and decision of questions. But it likewise requires that limits should be set to litigation, and of this the law has taken clear notice in one of its settled maxims, and in many other ways.

It has also taken notice that there are questions which cannot be made the subject of review in an appellate court without derogating from the independence and authority due to the tribunal where they arise; and others still, which from their nature cannot be intelligently and safely re-examined except in the court where they originate.

But in addition to these, there has always been a mass of practice questions which the law, upon grounds of general utility and practical necessity, has considered as not properly appealable to another tribunal. It has been wisely deemed that permission to litigants to carry cases up for review upon each and every of the points ruled in matters of practice and routine, would well nigh make litigation endless, and instead of favoring justice would promote injustice. Passing from these general and somewhat, trite observations to the actual case before us, we observe that .the true subject of complaint by the plaintiff in error-on this record, is the final result of his motion and not the peculiar view of the court Avhich led to it. — McCluny v. Silliman, 6 Wheat., 598; United States v. Buford, 8 Pet., 12; Davis v. Packard, 6 Pet., 41; Corning v. Troy Iron & Nail Factory, 15 How., 451; Sturgis v. Clough, 1 Wall., 269.

If. the motion had been granted in disregard of the merits, on the mistaken supposition that some rule imperatively required it to be granted on being asked for, no one would imagine that the erroneous reason could be distinguished from the actual determination so as to serve as a distinct ground of error for the plaintiff in error, and if a wrong reason for a favorable decision could not be thus separated and distinguished from the actual result, it is not perceived how a wrong reason for an unfavorable one can be.

The objection, then, must be considered as founded on the refusal of the motion, and not on the motive which led to that refusal, and considered in that light it seems manifest, according to the uniform course of decision, that the proceeding was one belonging to the practice and discretionary authority of the court below, not regularly re-examinable on writ of error, and certainly not when not shown to have been decided in clear opposition to the merits. — Detroit v. Jackson, 1 Doug., 106; Millerd v. Reeves, 1 Mich., 107; Lee v. Hardgrave, 3 Mich., 77; Bourke v. James, 4 Mich., 336; Holbrook v. Cook, 5 Mich., 225; Chaffee v. Soldan, ib. 242; Crippen v. People, 8 Mich., 117; Tefft v. McNoah, 9 Mich., 201; Ripley v. Davis, 15 Mich., 75; Pearsons v. Eaton, 18 Mich., 79; Final v. Backus, ib. 218; 2 Abbott’s U. S. Prac., 230, and notes.

If the granting or refusing of an interlocutory motion can be so worked into the record as to authorize error to be assigned on it, by a mere statement in the decision like that made by the court below in this instance, then the common-law composition of the record and the generally admitted scope of a writ of error can be entirely -changed by what in time will become a mere form, and the whole swarm of rulings upon pure practice questions and on points rightly and strictly depending on mere judicial discretion will be brought here for review. But we are satisfied that no such jurisdiction is conferred or ought to be.

This disposes of all tbe assignments of error, and, as a consequence, of the case.

The judgment should be affirmed, with costs.

Campbell, J., and Christiancy, Oh. J., concurred. Cooley, J., did not sit in this case.