Holcomb v. Tift , 54 Mich. 647 ( 1884 )

Campbell, J.

This suit was originally brought on a justice’s judgment upon a cause of action against Jerry Mason and Le Roy Tift. Tift was the only defendant served. The justice, in rendering judgment, seems to have used the word “ defendant ” instead of “ defendants.” But inasmuch as the statute provides what judgment shall be rendered on joint debts where only one party is served, this is a mere clerical misprision, and the judgment, not having been taken up by certiorari or appeal, must stand as a valid judgment for all purposes against the defendant who was served. Allen v. Mills 26 Mich. 123 ; Zimmer v. Davis 35 Mich. 39.

The present action, being assumpsit on that judgment, was bi’ought, at first against both parties, but discontinued as to Mason, and carried to judgment against Tift. Objection was made to the transcript of the earlier judgment, because it was made by another justice, and because it was claimed to be defectively proved. This objection is not well taken. It was certified by a justice, who showed by his certificate that the docket was in his possession. And we must presume that the William H. Hicks who was shown to be a justice, is the person who, as such, certified the transcript. Facey v. Fuller 13 Mich. 527.

We think there was no error in allowing judgment in the present case against Tift alone. The old judgment, although joint in form, was in no legal sense a joint obligation binding both alike. It bound Tift, but it did not conclusively bind Mason. It did not merge the debt on which it was founded, so as to preclude its being sued over against both. Bonesteel v. Todd 9 Mich. 371. It was never binding on Mason personally. Id.; Goebel v. Stevenson 35 Mich. 185; How. Stat. § 6943. Any proceeding against Mason, in order to bind him, would have to be on the original obligation, whether nominally on the judgment or not. Oakley v. Aspinwall 4 N. Y. 514. It was proper, therefore, to treat this judgment, in an action of assumpsit on it, as Tift’s individual liability, on which he alone was personally liable, and the discontinuance against Mason was proper and worked no harm to any one.

The judgment must be affirmed.

Champlin and Sherwood, JJ. concurred. Cooley, C. J. did not sit.