Jennings v. Kalamazoo ( 1880 )

Marston, C. J.

This is an application for respondent to show cause why a certain motion made in a cause pending in the circuit court should not be granted. In a cause heard.on appeal from justice’s court, judgment was rendered December 1st, 1879, against one of the defendants for damages and costs. On the 31st day of January, 1880, an execution was issued, but dated back so that it appeared on its face to have been issued December 22d, 1879. A motion was afterwards made, based upon a showing of the above facts, for an order that the execution be returned by the sheriff, and that the same be set aside or amended by having it bear date as when issued. This motion was denied.

We think no mandamus should issue. In any question hereafter arising in an action brought against the sureties, the facts above set forth could then be shown. They are not, therefore, without ample remedy.

The motion must be denied.

The other Justices concurred.